On The Criminal Procedural Cultures

While the rule of law is accepted as an ideal way to rule the society which is resulted from practice and exploration of the mankind through long history,it does not mean to the man everything have settled.Because not only is the model of rule of law not fixed but also the disputes on how to make and explain the statues which bear with the rule of law will not stop.Because the law is a kind of local knowledge,which means the law is not only the compound of regulation but also a kind of dynamic cultural phenomenon.It has close relationship with the society in which the law roots but also will follow the orbit of the social progress.That is to say,the law is an organism being organized by a series of actors bearing with specific form and use but also affected deeply by some specific social and history factors.As conclusion,when making the law and try to explain the spirits of the law,we should give eyes to the law of formal meaning and equally to the law of substantial meaning,not only to today law but also to yesterday law,not only to the foreign law,but also to the native and the local law.Being based on the above-mentioned consideration,the criminal procedural cultures which play an important role and have practice values in making and understanding the criminal procedure law is chosen as the topic of this essay.In this essay not only will the criminal procedure law be studied as a dynamic phenomenon but also the born and evolution of it will be discussed from the cultural views.Then the view of the cultural history in which the law originated and rooted should be given enough emphasis when making and understanding the system of the criminal procedure law.This essay will include six chapters and sections.The first one is on the concept and characteristics of the criminal procedural cultures.After studying different cultural theories and law cultures,it concluded that the criminal procedural law should include broad sense and narrow one.The broad sense is that the criminal procedural cultures are collections which formed into being historically and one with all kinds of legal phenomenon that have related with the criminal procedure law.The narrow sense one is that the criminal procedural cultures is a system mingled with all the views and values being contained in the criminal procedural law system,behavior patterns of criminal procedure, criminal judicial system and mechanism,criminal judicial structure and facilities which reversely also gives restrictions and guides to their progress. I'd like to say that this essay only talks on the broad one.The specification of the criminal procedure law decides the specification of the criminal procedural cultures.Except the usual and specific characteristics of the general culture and law culture,the criminal procedural cultures also have the specific characteristics of conforming to the constitution,localization knowledge and unity of stability and development which different from other culture.The second chapter is about the structures and functions of the criminal procedural cultures.The basic relationship of the structures is focus on the relatively fixed relationship of every part and factors not on the parts and factors themselves.The significance of the structure lies that it can decide the affairs' nature.The structure of the criminal procedural culture can be divided into the inner part and exterior.Every part includes several factors which will influence each other and will mingle in a system or a whole entity.The nucleus factors of the inner part is the ideas of the criminal procedure law but of the exterior is the system of the criminal procedure law.The functions of the criminal procedural cultures mainly include the function of expression and symbol,of the exchange and unification,of the weigh and direction,of the restriction and regulation,etc.The third part is about the model of the criminal procedural cultures and mainly talks about the characteristics and functions of certain kind of criminal procedural culture when it being studied as an entirety.The model of cultures is an important knowledge when you trying to study deeply the function of expression and symbol of the criminal procedural cultures.The model of cultures mainly touches on the cultures with characteristics of specification,locality and nationality.In view of this point,the model of the criminal procedural culture plays a determinant role when to choose which model of the criminal procedure law should be taken.If different kinds of criminal procedural cultures meet together,conflicts will take place and exchange,influence each other and even to merge into together will also happen at the meantime.Conflicts and mutual effects of the criminal procedural cultures mainly happened between the locality and foreigner,the country and common people,the inner part and exterior and the tradition and contemporary in which the criminal procedural cultures get development.The fourth part is about the development of the criminal procedural cultures in the system of civil law and case law.In line with the model of the culture,there are different kinds of models of the criminal procedural cultures during the different history,age,areas and different nation.What does make this difference? One of the effective ways is to clarify the development of the criminal procedural cultures.Being limited by the length of this article,in line with the different kinds of the model of the criminal procedural cultures will give different effects during the different history,this article only do give eyes mainly on the development of the criminal procedural cultures of the system of the civil law and the case law and at the meantime only touches on some country which can show the specific characteristics of the criminal procedural cultures of the two legal system.It is no needless to say that in line with the broad sense of the criminal procedural culture this article studied and the system culture mirrors the way of looking at a thing,the clarification to the development of the criminal procedural cultures of two legal systems mainly be realized through to show the development of the system cultures.The fifth part is about the criminal procedural cultures of China.The criminal procedural cultures in china have been being developed for three thousand years.It has many characteristics to summarize although its single model.On account of the length of this article,only the No-LAWSUIT and INTERROGATION get discussed.I argue that,from the views of the criminal procedure law,the theory of NO-LAWSUIT mainly stands for clearing up civil case.This theory only includes simple criminal cases, generally speaking,which is commensurate with the private cases stated by today criminal procedure law.The INTERROGATION plays an important role in the history of the criminal procedure law in china.In china how to make the process of interrogation in the criminal procedure more justice appears to be hot point.For this purpose;,after checking the video recording rule taken by the procuratorial organs during procurator interrogating the suspects,this article will talk about how to deal with the culture tradition during the process of making the inten'ogation in the criminal procedure being more justice.The sixth part is about the construction of the criminal procedural system which is rooted on traditional culture.If the forgoing statement is about to raise and analyze question,this part will mainly about to solve the question.That is to say,to answer the argument that when we study and construct the criminal procedural legal system,the tradition of the criminal procedural culture which come into being in specific social history should be given more consideration.Firstly,the basic points of constructing the criminal procedural law should be it can,will,and does work.For this purpose,when we construct the criminal procedural law,the rule of reality and forwardness,of legality and sanction,of systematic and specific,of manipulative and open should be adhered to.Secondly,in order to keep equal situation between controlling crime and protecting the legal rights of suspects which is the purpose of the criminal procedure law pursuit,there are three factors should be considered when constructing the criminal procedural law,that is,diversity of the procedural rule and process, attention to example of the case,strengthening the regulation effects of the criminal policy.Finally,the criminal procedural model of confrontation and cooperation or reconciled should be developed.For this reason,the judicial model of consultation in line with the view of cooperation and the model of recovery in line with the view of reconciliation should be developed.