Study On Criminal Procedural Parties' Option

It is not attaching necessary importance to the parties'will in Chinese present criminal procedures. The criminal procedural parties have no freedom in choosing and dealing with the processes and procedural matters. Other countries in the world are now paying regard to the protection of the criminal procedural parties'rights steadily, and emphasizing the parties'subjectivity. During the course of practicing criminal procedure law, the enforcement departments are now trying to use several new forms of justice, such as restorative justice, community correction, and so on. Under this situation, it is necessary to discuss and study on the criminal procedural parties'option in order to give them better protection.Besides the foreword, this dissertation is divided into seven chapters and one conclusion.The foreword looks back on the history of the absence of principle of disposition in Chinese criminal process from the first time China made its criminal procedure law in the end of Qing dynasty. With the development of criminal justice reform in the worldwide, the subjectivity of criminal procedural parties'get more regards. The parties are now requiring have access to express their claims and opinion, and to choose the proper procedure they prefer. This kind of tendency also influences criminal justice in China so that the parties demand more rights and convenience to protect their interests in case.Chapter one is a comprehensive view of criminal procedural parties'option. It discusses the right to choose and the definition scope of criminal procedural parties, and it analyzes the value of parties'interest in cases. Based on the above mentioned elements, it defines the meaning of the parties'option and introduces the characters of the parties'option. According to the dissertation, the criminal procedural parties'option is a kind of procedural right and it is statutory, limited and interactional. The parties can choose the proper procedure or procedural matters based on their own interests in case. The court should give them guidance and examine the results of their choice.The second chapter is about the basic theories of the parties'option. According to the dissertation, the theory of subjectivity, the theory of consensus of the accuser and the defender, the theory of economic and the theory of harmoniousness of the society are the base of the parties'option. It also discusses the relationship between the efficiency and justice of criminal procedure. In considering the nature of criminal procedure is resolving the disputes between the parties, this dissertation regards the theory of harmoniousness is an important basic theory to insure the justice of criminal procedure through the fair process and results of cases.The third chapter puts forward the preconditions of the parties'option. They include the ideas as following: the idea of good faith of the state powers, people oriented idea, and equal armed idea. These ideas respect the subjectivity of the parties and give enough attention to their interests in cases. In order to enhance the ability of the parties, this dissertation also proposes the idea of effective participation, the idea of sufficient information and the idea of reasonable assistance.In chapter Four, it discusses the safeguard system of the parties'option. The system is consisted with some subsystem including discovery, the system of lawyer, legal aid system and the compensation system of the victims. The purpose of discovery is giving sufficient information about the case for the parties. The aim of the system of lawyer is to help the parties in a reasonable way. And the legal aid system and the compensation system of the victims are all measures to insure necessary help to the weak parties in the process.Chapter Five proposes several suggestions to fulfill the criminal procedural parties'option in China from the macroscopic view. It requires the change of criminal justice policy. And it suggests the procedures multiplicity and interchangeable. It also proposes several relieve measures to the parties'option.In chapter Six and chapter Seven, they discuss the specific suggestions to perfect the option of the accused and the victim separately. Since it is a long and step-by-step process to recognize the subjectivity of the parties, the parties'interests in the cases are also in an expanding state. So it is not a wise choice to list the procedures and procedural matters one by one. On the other hand, it is urgent to regulating the practice of the parties'option in some special fields of criminal procedure. This dissertation lists several suggestions related to those special fields.In the last part, it concludes the whole dissertation, including the foreword and the seven chapters. It insists that it is necessary to set up and perfect the criminal procedural parties'option so that it can keep up with the international criminal justice tendency and take advantage of an opportunity to protect the criminal parties'legal rights and interests in the cases.