Conflict And Balance: On Protection Of The Accused's Right

Criminal procedure is a field of realizing interest, on circumstance of the limitations from a specific social condition and pursuing interests of maximization, the conflicts of interest can be easily caused among the criminal procedural subjects who pursue different interests. But conflict of interest between the accused and government is the core content of the conflicts. The key point of conflicts is in what ways and cost to realize crime control and social security .We can not resolve the conflicts by eliminating one of conflict parties or letting one of them get nothing because of their proper pursuits of interest, as a result, equilibrium theory will be introduced naturally. On circumstance of coexistence,the significance of banlance is to maximize the interests of all parties. Limitation of power and enhancing the protection of rights will be the key point because of the powerful position of the power subjects in criminal procedure. This article is mainly divided into five parts:Chapterâ… Relation theory of interest: definition of interests of criminal procedural subjects;On base of the classical theory of natural law analyzed and the main ideas of three different stages explained in the article, natural jurists take the common understanding on reason, liberty, equality, social contract, sharing rights, protecting rights by self, sovereignty of the people.Based on above, we think that the public power results from conflict and banlace of interest, social contract is the approach of power, law is the soul of state, power is the life of state, while the national institutions constitute the country's body. The criminal procedural power is an integral part of public powers, which should be a kind of passive power, legal power, and the strongest power. From the general perspective, there are many relations between criminal procedural right and power,such as the relation of protecting and protected from the perspective of goal, the relation of unity and opposite from the dialectical perspective,the relation of limit and limited from the perspective of banlance. From the analysis of the main interests in criminal procedure, the criminal procedural subjects should include victim and investigation agencies besides defendant, prosecutor and judge. Need is the base of interest, the need of criminal procedural subjects is not a purely natural need, but a role need, consequently, the interest of criminal procedure is a kind of role interest, the different procedural subjects pursue different interests because of different role in criminal procedure. From the perspective of goal, it is the common interest of all the parties to realize the protection of rights. But in specific procedural legal relations, victim, accused and judicial institutions have their own pursuit of interest due to the different role in criminal procedure. Every procedural subject has specific pursuit in stage of investigation, prosecution and trial, while they have the common i nterest in criminal procedure.Chapterâ…¡Conflict theory of interest: the necessity of protection of the accused's rights; The phenomenon of loss and reduction of right can be produced by conflict of interest, which leads to necessity of protection of rights.The article starts from interpreting the conditions of conflict, the common conditions are as follows: pursuit of interest is the premise, the conflict of legitimate interest is the range, the power of equilibrium is the base of conflict. The conflicts are directly caused by crime, need of power subjects, existence of the accused's rights. There are irreplaceable value of criminal procedural conflicts which are as follows: function of exposure of problems, function of consumption of strength, effection of establishing rules, effect of promoting development of criminal procedure. The first is conflict of value which specificly include: the conflict of two value goals between protection of right and social order, the conflict of two value goals between author and authorized. The second is the conflict exists in specific criminal procedural relations which are as follows: the conflict between the victim and state is the conflict that can be coordinated, the conflict between the accused and victim is the conflict which can be reconciled, the conflict between judge and prosecutor or the defence is the conflict which the interest should be excluded.The conflict of interest can be divided into many specific conflicts in criminal procedure. Generally, the conflict caused by different interest view, the conflict between pursuit of interest and shortage of resources, the conflict between justice and efficiency. The conflicts between the accused and state include: the conflict between not interfering normal life and charging crime, the conflict between the protection of liberty and charging crime; The conflicts between victim and prosecutor include: the conflict between the victim's active participation and the national avoiding of purpose, the conflict between request of feeling and rational cognition, the conflict between the pursuit of individual justice and realizing social effect, the conflict between charging by self and charging by state, the conflict between procedure and result; The conflicts between judge and prosecutor or the defence are as follows: the conflict between neutral trial and dislocation of responsibility, the conflict between principle of efficiency and pursuit of truth. As a result, the conflicts of criminal procedural interest are produced by the orientation of value,legislation and the alienation of power.Chapterâ…¢Balance theory of interest: the approaches of protecting the accused's rights; Starts from the definition of balance, equilibrium is included in balance, so balance is not the same as equilibrium, which can be understood from two perspects: state and means. The features of balance are as follows: the conflict of proper interest is the scope of balance, the comparative equilibrium of conflict power is the premise of balance, the coexistence of conflict parties is the request of balance, the maximization of interest is the aim of balance. The unbalanced is the premise of balance, which includes two fields and two levels. The two fields mean the unbalanced in legal relations of criminal procedure and in legal relief relations of criminal procedure, the two levels mean the unbalanced in norm level and in fact level. Criminal procedural interests can be divided into individual interest, social interest, state interest from the perspective of fact level, but all of interests above are state interest from the perspective of legal level. Weigh of criminal procedural interest should follow some principles,such as the principle of weighing interest by the role in criminal procedure, the principle of protecting bottom interest,etc. If we take the realized degree of protecting rights as the standard of weighing justice, on circumstance of social security and order protected, and the premise of limitation of social resource, criminal procedural right and power are in inverse relation. Control of power and legislation of right are main ways of balance. Control of power in criminal procedure should follow principle of legal power, principle of power decentralized, principle of power contained by right. The accused should have rights of presumption of innocence, equal participation, defense and the corresponding procedural rights of relief.Chapterâ…£Reflection theory of interest: the current state of protecting the accused's rights; The configuration and relation of right and power is the core content of criminal procedure, which is not a pure criminal procedural object but a constitutional content. Realizing criminal procedural rights need to be supported and protected by constitution, but the constitutionalization of criminal procedural power is the premise of the constitutionalization of criminal procedural right. There are some problems in constitutionalization of criminal procedural power in China, such as the offset positioning of restriction mechanism among powers, the power expansion caused by constitutional vague bounds, consequently, which lead to the unbalanced state between criminal procedural right and power. Pertain to criminal procedure, constitutional rights are the base of criminal procedural rights, which build the base of crimial procedural rights building. But compared to , the lack of presumption of innocence, self-disincrimination, limitation of double jeopardy in criminal procedure made the base leaking of criminal procedural rights building. For lack of specific ways to realize rights, the legislated constitutional rights present an impractical side. Pertrain to criminal procedure specificly, there are some problems, such as the unbalanced between ideal rights and actual rights, the unbalanced between purpose rights and means rights, the unbalanced between procedural violation and procedural sanctions, etc. The protection ways of the accused's rights will not go on smoothly for lack of rights, unpractical rights and blocked relief ways.Chapterâ…¤Realizing theory of interest: the approach from actuality to ideality; The first step is to do research on approach of protection in criminal procedure which include two points: the selection of direction and the implement of specific ways. The selection of perfecting ways is actually involved in selection of interest and balance. We need to make balance between ideal level and actual ability, balance between universality and particularity, balance between stablity and timelyness. The relations between right and power constitute the core content, as a result, the key point of realizing protection of criminal procedural rights are as follows: the first is the control of criminal procedural power;the second is to perfect the system of criminal procedural rights.The control of criminal procedural power mainly include the control of trial power,procuratorial power and investigation power.The control of trial power are mainly focus on the perfection of substantive and procedural jurisdiction.The key point for the perfection of procuratorial power is to take the charging power as the elementary part and to enhance prosecutor's discretion power.The first step fot the control of investigation power is to legislate the principle of"taking not being taken into custody as the nomal condition of investigation",meanwhile it is also important to limit the investigator's power of search,seizure and interrogation.It is necessary to find suitable ways to perfect criminal procedural right system, which means steping in from offseting loophole of right system in criminal procedure at first, then enhancing the protection ways of realizing rights, and defining the relief approach and measures of rights,etc. But the protection mechanism system of rights above is still in the scope of a state controlled, actually, criminal procedure is somewhat a dispute around loss and reduction of right between the individuals and the state. So the real protection of rights and riding of the shackles from state will be realized by exceeding the state level and tried by an international judicial institution. Although there is a long distance to go for the protection of human rights, the successful operation of The European court no doubt lit up the lighthouse for the protection of human rights, and Pointed out the forward direction for realizing the international judicial protection of criminal procedural rights.