The Principle Of Proportion In Criminal Procedure

Western public law regards principle of proportion as a very important principle in such name as "crown principle" or "king principle".This paper aims at exploring the applicability of this principle in the field of criminal litigation,especially construction of the criminal procedure.Since the principle of proportion provides a special perspective for pondering the relationship between state power and citizen rights,we should deem it as a basic principle.The introduction of principle of proportion brings new approaches in dealing with crime issue for modern state,and it also results in scientificity and rationalization of criminal procedural law for this country.This paper can be divided into six chapters,of which the first two parts are general theories and the last four parts are studies on various institutions or procedures.The first chapter is "defining principle of proportion in the context of criminal procedure".In the beginning it introduces the basic definition of the principle of proportion in public law, which comprises of three sub-principles,including principle of suitability, principle of necessity,and principle of proportionality.Then the idea source of principle of proportion is explored and its outset in law is reviewed.This principle originated in the field of police law in Germany of 1800s,and it has been gradually spread through the field of administrative law and constitutional law.In the beginning it had close connection with criminal procedural law.Although there are different views concerning incorporating principle of proportion into criminal procedure,this paper insists that to make the principle of proportion a basic principle of criminal procedural law is not only feasible and also necessary.The regulating object of this principle is procedural conducts under authority made by organs of investigation,public prosecution and court.The protecting object of this principle is basic rights and reasonable interests of the accused.The working area of this principle includes the conducts of legislation and also implementation of law.The second chapter is "theoretical analysis of principle of proportion in the context of criminal procedure".It expounds the value factor of principle of proportion,its intrinsic relationship with criminal justice,its aim for protecting the human fight in criminal procedure.On the basis of relationship of formal justice and substantial justice of law,the relationship of judicial justice and legislative justice in the area of criminal justice are discussed.At the same time,this paper tries to solve some perplexing issues concerning criminal justice such as justice and litigation costs, justice and conciliation.Detention systems are hidden from public view, interrogations are unrecorded,and arrestees are rarely,if ever,given prompt access to a doctor or lawyer;thus little evidence of abuse during interrogation is preserved,making prosecution(and proof) more difficult. At the end of this chapter,the basic meaning of social justice and its relationship with judicial justice are discussed.The third chapter is "the principle of proportion and compulsory measures".It explores how to implement principle of proportion in the system of compulsory measures to deal with the unbalance use of compulsory measures in practice.If the compulsory measures used by a People's Court,a prosecutor or a public security organ exceed the time period prescribed by law,the suspect or defendant,his legal representatives, near relatives,or the defenders shall have the fight to demand cancellation of such compulsory measures.The People's Court,the prosecutor,or the public security organ shall release the criminal suspect or defendant when the compulsory measures adopted against him have exceeded the time limit prescribed by law,terminate the period for awaiting trial after obtaining a guarantor or for residential surveillance,or take different compulsory measures according to law.At the end of this chapter,the basic meaning of social justice and its relationship with judicial justice are discussed.The fourth chapter is "the principle of proportion and investigative measures",which examines the significance of the principle of proportion in setting up and perfecting the system of investigative measures.The first instance procedure of public prosecution cases mainly includes stages such as pre-trial examination,pre-trial preparation,court session,postponement or suspension of trial,deliberation,and pronouncement of judgment.With the approximate structure with the first instance procedure of public prosecution cases,the private prosecution procedure only deals with minor cases infringing upon individual rights and interests,and it has its own characteristics.The suggestions to reform the criminal trial of the first instance are as follows:realizing judicial independence,guaranteeing witnesses' appearance in the court,enhancing the rights of the defense, protecting rights of the victim,establishing the system of evidence discovery,excluding illegal evidence,carrying out victim-offender reconciliation and so on.The fifth chapter is "the principle of proportion and procedure of prosecution",in which how to use the principle of proportion to construct the procedure of prosecution is analyzed.Above all,the principle of proportion can be the guideline to allocate rights of prosecution and to choose mode of prosecution in criminal procedure.This is the main content of the first section.The time period for holding a suspect in custody in the procedure of examination for prosecution,first instance,or second instance shall not exceed one month and a half.The prosecution or the court at the next higher level,when deciding whether to extend the custodial period, shall heed in advance the opinion of the suspect or defendant in custody, his legal representatives,near relatives,defenders,and the decision shall be made prior to the expiration of the legal time period for custody.At the same time,this paper tries to solve some perplexing issues concerning criminal justice such as justice and litigation costs,justice and conciliation.The sixth chapter is "the principle of proportion and procedure of trial",in which how the principle of proportion can be a guideline in constructing and criticizing the criminal trial procedure.If the time period needs an extension in conformity with the preceding four Articles,the organ handling the case shall submit a written request within seven days before the period has expired,and the People's Procuratorate with the authority to approve the extension shall make the decision prior to the expiration of the legal time period for holding a suspect in custody for investigation.If the prosecution approves an extension of the time period for holding a suspect in custody,it shall notify the public security organ, while at the same time serve the duplicate of the extension approval on the suspect in custody,his legal representatives,near relatives and defenders, with a statement of the reason for the extension approval and the period extended.It is important to hold an appropriate idea of procedural justice when China is launching its agenda to revise the criminal procedural law.