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The Study On The Behavior Of The Criminal Prosecution

Posted on:2012-06-01Degree:DoctorType:Dissertation
Country:ChinaCandidate:L J LiFull Text:PDF
GTID:1226330335957931Subject:Procedural Law
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Currently, the study on the behavior of the criminal prosecution in domestic legal circle is not systematic and not deep. However, as an important judicial behavior in the procuratorates all over the world, it is the research subject which most closely combines the theory and the practice. To have a thorough and deep research on it can not only comprehensively grasping the external form of the procuratorate’s symbolic function,but also positively carrying out the goal of“regulating the judicial behavior”.In view of the single perspective of the traditional study, this dissertation is trying to use a behavioral law-based perspective,in order to be beneficial to the perfection of the cirminal prosecution system and the scientific,normalized and effective operation in our country.This dissertation consists of two parts apart from the introduction (including the reason for choosing this subject, current situation in academic research, the goals, significance, thread and methods of study in this dissertatiion) and conclusion.“The macro-study of the basic theory”is the main contents of the first part that is made up of three chapters. The second part is about“the analysis of the specific behavior patterns of the criminal prosecution”which also consists of three chapters. The main contents of the six chapters are as follows:Chapter one, which is divided into four segments, generally discusses the theories of the behavior of the criminal prosecution in a multi-disciplinary perspective.The first segment summarizes the definition, characteristics and significance of the“behavior”in the views of psychology, sociology and jurisprudence.It also discusses the origin and development of the behavioral law, and analyzes the relationship between the behavioarl law and other related subjects. All this lays the foundation of the concepts and methodology. The second segment firstly introduces the oringin and development of the legal act theory, and then analyzes the structure, characteristics and significance of the legal act. The third segment generally explores the definition and the theory development of the criminal procedural act. Also especially it elaborates the classification, effect and significance of the criminal procedural act. The fourth segment firstly defines the behavior of the criminal prosecution, then analyzes the relationship between the behavior, the legal act, the behavior of the criminal prosecution, the behavior of trial and the behavior of defense. Next, it points out that the behavior of the criminal prosecution has the following characteristics: its subject is parcicular, it operates in specific time and space, it has to obey legal rules and regulations as well as strict procedural law. At last,it summarizes five trends in domestic behavior of the criminal prosecution-the behavior pattern is more diverse, the management mechanism is more professional and so on.Chapter two explores the behavior pattern of the criminal prosecution from two aspects: the theoretical generalization of the behavior pattern and the basic element analysis of the behavior of the crminnal prosecution. As for the former aspect,this chapter has a brief introduction of the typical theroies in the fields of jurisprudence,psychology,management and sociology,including the“S→O→R”behavior pattern theory, hierarchy of needs theory, two-factor theory, goal-setting theory. By using the above theory on regular pattern for reference, we can apply the behavior pattern of“need→motivation→action→goal(the satisfaction of need)→new need→new motivation→…”to the study on the criminal prosection.Next,based on this, the chapter analyzes the baisc elements of the behavior of the criminal prosecution: need-order maintenance as the basic need, right protection as the ultimate need, relationship repair as the contemporary need; the punishment of crime, the division of power and the establishment of credibility as the motivation;the balance bewteen power and right in the proceedings and the evidence examination and judgment are the key points in the operation; the connotation and empirical analysis of the goals-the realization of judicial justice, the principle of public interests and the aeherence to the objective obligation.The chapter three discusses the the behavior adjustment and control of the criminal prosecution. First, it explores the theoretical bases. Specifically, Marx’s dialectical materialism is the foundational theory, and the theories of practice and contradiction are significant in guiding the behavior of the criminal prosecution. Also, the judicial field theory, the system theory, the exchange theory, the role theory and the harmony theory all have guidance to the behavior of the criminal prosecution. Next, it explores the specifical mechanisms from five aspects. Specifically, the mechanism of meeting the need includes the meeting of the need diversity, the highlighting of the need hierarchy and the optimizing of the institutional framework. The incentive motivation mechanism consists of general principles, basic ways, role orientation and the provisions of effectiveness. The operation safeguard mechanism is made up of the principles, provisions, information resource sharing mechanism, post treatment and restriction mechanism. The goal orientation mechanism includes the balance between substantive justice and procedural justice, the implementation of domestic policies and international guidelines, the role-playing of culture. The effect evaluation mechanism consists of the choice of the evaluation criteria and the setting of the assessment indicators.Chapter four specifically analyzes the elements and adjustment and control mechanism of the discretionary behavior in non-prosecution. First, it has a brief introduction and comment about relevant provisions in England,the United States,Germany, Japan and Taiwan of China.Then it fouses on the current domestic situation from the aspects of the scope,application rate, operating rules and regulations, assessment mechanism,pilot projects and typical cases. Next, this chapter explores the specific elements of the discretionary behavior pattern in non-prosecution. They include the needs-the requirement of crime situation and development of penalty views, the requirement of rigorously enforcing the rules and free discretion, the response of criminal policies; the motivations-procedure division, interest balance and social harmony; operation-the interaction of prosecution power and litigation rights, the safeguard and restriction of the operation; goals- fulfillment of the doctrine of prosecution discretion and maintenance of the public interest principle. Based on the above elements, this chapter analyzes the perfection of its adjustment and control mechanism from five aspects: the balance between multiple needs, the motivation mechanism by establishing proper ideas and institutions, the perfection of relevant system, the implementation of the criminal policy of tempering justice with mercy and relevant UN standards and norms in criminal justice, the reasonable setting of assessment goals by analyzing the rate of non-prosecution.The chapter five is about the behavior of the change in prosecution. First, it discusses the institutional design at home and abroad, especially focusing on domestic legislative evolution, judicial interpretation, existing problems and relevant cases. Next, this chapter analyzes the elements of behavior pattern of the change in prosecution: the needs caused by the different cognition of the accusation and the change of the evidence; the motivation based upon the separation principle between charge and interrogation as well as the litigation efficiency; the operation by the interaction of the changing power in the litigation claim, the accusation determination power and the right to defense as well as the system of count and the fact of public prosection; the goals made up of the compliance with the objective obligation, the safeguard of the suspects’litigation subject status and the guarantee of litigation efficiency. Finally, it expounds the perfection of the adjustment and control mechanism from the aspects of the idea, institution and assessment.The chapter six focuses on the behavior of sentencing proposal. First, it introduces the reason for choosing this specific behavior pattern and generally summarizes the relevant institutions at home and abroad, domestic judicial practice and existing academic discussion. Next, it analyzes the elements of the behavior pattern:the needs of comprehensive power of public prosecution, the pursuit of litigation efficiency and the requirement of judicial justice; the motivation propelled by the sentencing procedure reform; the operation mainly made up of the balance between the sentence-seeking power and the jurisdiction,the interaction of the proposal power and the right to defense; the goals of making the sentencing procedure more equitable and the guaranteed rights more detailed. Finally, this chapter expounds how to perfect the adjustment and control mechanism. It includes the idea of making the behavior of prosecution more meticulous and the sentencing procedure more transparent, the construction of independent sentencing procedure and the specific sentencing proposal procedure as well as the reasonable setting of the assessment indicators by analyzing the sentencing-proposal adoption rate and the appeal rate.
Keywords/Search Tags:behavioral law, the behavior of the criminal prosecution, behavior pattern, the behavior adjustment and control, the discretionary behavior in non-prosecution, the behavior of the change in prosecution, the behavior of sentencing proposal
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