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An Introduction To The Methodology Of Criminal Procedure

Posted on:2009-06-26Degree:DoctorType:Dissertation
Country:ChinaCandidate:X Z LeiFull Text:PDF
GTID:1116360272483881Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The contemporary methodology of jurisprudence, with the support of legal argument theory, litigable nature theory, methodology of jurisprudence concerning department law, ect., has realized its internal transcendence both at the internal resources level and the outside communication level. Based on the Characteristics of methodology of jurisprudence and Criminal litigation, the Criminal Procedure Study Methodology focuses on the methodology of law application and the methodology of legal research. The former includes legal finding, legal explanations, legal reasoning, value appraisement, gap filling and legal argument; the latter varies in different the eras and legal theoretical systems. Legal methods and jurisprudence methods can interact and promote mutually. In the context of unification of criminal laws, all kinds of methodology of jurisprudence are guided by the doctrine of procedure legality, statutory principle of crime and penalty and the principle of evidence judgment.This dissertation includes eight sections.SectionⅠis an outline.SectionⅡwill involve the legal finding in criminal litigation, which is the process of the fact finder finding the decision norms in the legal sources for the specific case according to certain methods. In judicial practice, the pressures from rules outside the law, benign breaching of regulations, potential rules, customary norms, policies and check indexes show that the unification and authority of criminal procedure law remains to be improved. I suggest that we learn from the west and construct a litigable regime with Chinese Characteristics and only through this regime that we can achieve the goal of real finding of law.SectionⅢis mainly about legal explanations of criminal procedure, which is the activity of the fact finder clarifying and demonstrating the ambiguity of law application, and thereby we can realize the embodiment of legal rules and the generalization of the facts in specific case. In the context of current legal explanation system, the abstract and general legal explanation suffers from ultra vires, confliction of contents and roughness of methods. I argue that we should accept the judge with the authority of legal explanation and at the same time the Supreme Legislature could take back the authority of making abstract and normative legal explanations. And also we should follow the principle of " strict explanation ", principle of beneficial to the accused " and " principle of dynamicreviewSectionⅣwill analyze the legal reasoning in criminal litigation, which is the process of the fact finder matching main issues of the case with the statutes of criminal procedure law. Because of the uncertainty of judgment rule in CPL (Criminal Procedure Law) and the inquisitorial tradition, the fact finder would often ignore the reasoning structure in "the complex criminal litigations". I suggest that we should improve the preliminary and procedural "crime and punishment reasoning","legal reasoning", "evidence reasoning", "effects evaluation", and at the same time prevent the breach of law hoping to promote the precision and normalization of reasoning. SectionⅤwill talk about value evaluation which is the process in which the fact finders weigh the conflict of interests and make the choices in accordance with certain procedures and methods. The track of modernization of CPL undergoes a twisted history of value evaluation. We should avoid the traditional "subject duality" (the state and the accused)and "order priority"and try to adjust the standards of value evaluation, vary the benefit distributions; at the same time we should eliminate the closeness and conservativeness in CPL and absorb "the comprehensive interests balance pattern", "stable value status" and "dynamic balance methods". To sum up, we should avoid the narrow point of view and try to cultivate a legislation art and establish the legal authority to optimize the benefit balance.SectionⅥwill discuss the gap filling which is trying to fill the gap of the law timely, when the stipulation proved unsatisfactory. If the gap filling process is at will, improper and even illegal, there it would do substantially harm to the citizens and even invoke the "human rights crisis". Though "analogy", "limitation for purpose", "expansion for purpose" and "creative explanation" can be used as gap filling measures in criminal litigation , we have to regulate the above unreasonable process through the principle of "limited gap filling" , "principle of beneficial to the accused" and "due process principle". In the long run, we can transplant the Stare Decisis in common law for gap filling.SectionⅦwill analyze the legal argument in criminal litigation which argues the legitimacy of procedural facts and regulation used in criminal litigation. By "the simplified judicial syllogism ",the current legal argument seems too general, simple, formalized and rough. At the comparative view , "the dialogue pattern" in common law system and "the subsumtion proof pattern" in continental law system both have its own merits. The trend of Chinese legal argument is to construct a "comprehensively dynamic argument pattern" and stick to the legitimacy standard? ? coincidence with "logic rules", "acception rules" and "coherence rules".SectionⅧwill end with reflection and prediction. Compared with the weakness of the methodology of the ancient law of China, the western methodology of jurisprudence has already completed its permeation process now because of its objectivity, multi-dimensions, inter-discipline, functional oriented and timeliness. Methodology of jurisprudence in CPL study has to promote its scientization and multi-dimension, absorb the essence of multi-discipline such as natural jurisprudence, analytical jurisprudence and social jurisprudence, and take its way to the localization by the empirical reseach methods.To sum up, the methodology of jurisprudence is a methodology about human being and at the same time, it is a concrete knowledge and a frame category .The essence of criminal litigation is the rule of law and the benign transform of methodology of jurisprudence. Only through the interaction between the local law and transplanted law , and between the state's law and the civil law ,can we realize the communication between the jurists, legal practitioners and the state organs.
Keywords/Search Tags:Criminal litigation, Methodology of jurisprudence, the statutory principle of crimine and penalty, the principle of procedure legality, the principle of evidence judgment
PDF Full Text Request
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