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Compulsory Criminal Disposition Of The Distribution And Checks And Balances

Posted on:2011-01-19Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y S SongFull Text:PDF
GTID:1116360305497616Subject:International law
Abstract/Summary:PDF Full Text Request
The power of criminal coercive measure is the power of the police, the Prosecutor, and the judge to decide or carry out the power of criminal coercive measure, which belongs to the substance of criminal coercive measure while the latter is the carrier of the former. As we all know, to restrict power is the necessary step to realize the goal of building a country governed according to law, and to justly distribute the power is a basic precondition of check and balance of power, which is the same with the power of criminal coercive measure.In the point of the distribution of the power of criminal coercive measure, although the function of the power of the police, the prosecutor, and the judge have some common ground, they have difference in main concept of values, accordingly the power of criminal coercive measure should be distributed scientifically to adjust the manner of check and balance of power to bring into play the effect of it for a greater degree.In the point of the theory of check and balance of power of criminal coercive measure, it includes check and balance beforehand and afterwards. The check and balance beforehand set up a legal threshold to prevent the illegal criminal coercive measure from the due process; however, it can not guarantee that the criminal coercive measure has the proper status thereupon then, and it is necessary to check or confirm the criminal coercive measure again. Consequently, whatever the check and balance beforehand or afterwards, or even the check and balance from the point of rights, they are all the brakes to guarantee that the power can run properly in the legal track and can not derail, to preserve the fundamental rights as a final purpose.In common law and civil law country, they both set up a comparatively complete power distribution system on the idea of distribution of power. And in the point of the check and balance between powers, Firstly, in the check and balance beforehand, the common law and civil law country both adopt the principle of legal prescription and principle of court order jointly to control the power of criminal coercive measure. Secondly, regards to the check and balance afterwards, the countries of common law and civil law all set up the procedural sanction of the criminal actions as the main way and judicial remedy to control the criminal actions as a subsidiary way. In addition, in common law country, especially in U.S, it set up the complete system to balance the power through right, in other words, to balance the power through procedural defense.comparatively speaking, with regard to the distribution and balance of power of criminal coercive measure which counts for much, it is impeded no matter in practice or in theory in our country. In the legislation, there is no distribution as a whole or systematically, no complete system of check and balance beforehand or afterwards, and no procedural defense in practice. In juridical practice, it seems that the operation of the power of criminal coercive measure is out of control to some extent, causing the serious hidden trouble to the safeguard of the fundamental rights of citizens and leading to the worries of the thinking people in theory and juridical practice. In addition, the immature state may have a bad effect to the introduction of the benefit of the doubt or exclusionary rule of illegally obtained evidence; in consequence, it is necessary to resolve the problem through reconstruction of philosophy or law.As to the present state of the distribution and balance of power of criminal coercive measure in our country, the main reason lies that there is no systemic or scientific theory to direct it besides factors of historical tradition, political economy structure, and legal system which are closly related, leading to the state of knowing truly not knowing by cause and causing the various disadvantages above. Consequently, it is necessary to study the origin of the power from the point of embryology, to study the function of it from the point of subject, and to study the advantages and drawbacks of the distribution and balance of power of criminal coercive measure, in order to abandon it reasonably.From the point of the distribution of power of criminal coercive measure, we not only should set up the separation of subject of power of execution and power of decision which is observed widely by the modern nations subject to the rule of law, but should divide the scope of the power of criminal coercive measure of police, the prosecutor, and the judge reasonably according to the principle of judge power reserved exclusively, burden of proof by the prosecutor, and nemo debt esse judex in propria causa. From the point of the balance of power of criminal coercive measure, we need set up complete systems of the check and balance beforehand or afterwards. From the point of the check of power by rights, it is necessary to give the defendant the right of procedural defense to construct the system of procedural defense, which can endow the defendant opportunity to make up the gap between the accused and the prosecuting party and open up another important road to balance the power of criminal coercive measure.
Keywords/Search Tags:power of criminal coercive measure, distribution of power, balance of power, deconstruction and reconstitution
PDF Full Text Request
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