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Modern Criminal Dispute And Its Resolution

Posted on:2009-11-23Degree:DoctorType:Dissertation
Country:ChinaCandidate:T HeFull Text:PDF
GTID:1116360272983872Subject:Procedural Law
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The relationship between state and the offender is the kernel of traditional criminal justice system.State identifies the offender's criminal offense by criminal procedure,and ascertains his criminal liability according to the criminal law.Although modern criminal procedure has got much progress on the human rights protection and the power abusing control,this has not change the basic structure of state vs.offender but sometimes even strengthens this structure instead in criminal procedure. Under this basic structure,the criminal dispute between offender and victim caused by crime can't get the concern of criminal justice system thoroughly.Criminal justice system has not provided the necessary methods to resolve the criminal dispute and the criminal dispute always exists for a long time after the criminal procedure which results in a series of negative influences.This article researches on criminal dispute and its resolution in modern time.Based on the analysis of criminal dispute's connotation and modern characteristics,this article researches on theoretical bases,ideal models and detailed system construction of criminal dispute resolution in modern time.Dispute is inharmonious relationship between more than two parties caused by benefits,emotion and so on,which appears by external manifestations.Dispute has both negative and positive influences on society.Criminal dispute is inharmonious relationship between offender and victim caused by benefits,emotion and so on,which appears by crime. Criminal dispute has both common properties of other disputes and distinguishing characteristics.Criminal dispute is not same as criminal case, so disposition of criminal case in criminal procedure is not same as the resolution of criminal dispute.Modern criminal dispute has some characteristics which is closely related to the modern society.Modern criminal dispute can be divided into different kinds according to different standards.The research of characteristics and classification of modern criminal dispute is useful to resolve different kinds of modern criminal dispute.Resolution of criminal dispute includes four aspects:(1) ascertainment of crime,rights and duties;(2) elimination of inharmonious relationship between offender and victim;(3) spread the effect of resolution to other subjects beyond the parties;(4) spread the effect of resolution to future. Traditional criminal justice system of western countries and the criminal justice system of our country now have significant shortcoming about the resolution of criminal dispute,but the development of restorative justice and criminal reconciliation improves this situation.Concept of dispute resolution is a concept with a premise that disputes can not be avoided,which regards dispute resolution as important task to prevent negative influence of disputes.Concept of dispute resolution should be introduced into criminal justice system.Concept of dispute resolution in criminal justice system of our country includes five aspects:(1) accept criminal dispute into criminal justice system;(2) distinguish criminal dispute from criminal case;(3) arrange well about the relationship between resolution of criminal disputes and other disputes;(4) provide basic structure to resolve criminal disputes;(5) resolve criminal disputes in every stages of criminal procedure.Introduction of concept of dispute resolution into criminal justice system has not conflicts with the aims of criminal procedure in our country,which includes two parts:control crime and protect human rights.Concept of dispute resolution will lead the criminal justice system to some positive changes. Theoretical bases of modem criminal dispute resolution includes the following aspects:the "individual-society-state" priority view of criminal law,the correction to legal formalism from legal pragmatism,the transformation of the function about criminal law from government to governance,and the integration of consensus and decision in criminal procedure.We should not only use these above four ideal bases to prove the reasonableness and the scientificity of criminal disputes and its resolution further,but also to guide how to revise the criminal justice system to resolve criminal dispute better.To abstract theoretical models from practice is an effective method to analysis how to construct the detailed system of criminal dispute resolution. Theoretical model of criminal dispute resolution has two elements:subject and relationship.There are two ideal model of criminal dispute resolution: Model Dominated by Parties' Consensus and Model Dominated by State's Decision.Model dominated by parties' consensus means the criminal dispute resolution is dominated by the communication,consultation and consensus between offender and victim.The detailed system construction of Model dominated by parties' consensus includes communication, consultation between offender and victim,offender's remedy of crime,and state's control of parties' consensus.Model dominated by state's decision means the criminal dispute resolution is dominated by the state's decision which functions on offender and victim separately.The detailed system construction of Model dominated by state's decision includes protection of victim's rights in criminal procedure and aid to victim out of criminal procedure.
Keywords/Search Tags:modern criminal dispute, dispute resolution, concept of dispute resolution, model dominated by parties' consensus, model dominated by state's decision
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