Rearch On Chinese Local Rules Of Criminal Procedure

This doctoral dissertation includes an introduction, five chapters and a conclusion.Introduction elaborate the research status and significance of this paper and methodsused. Recently several domestic scholars have researched local rules of evidence andprosecution, other one called internal rules and procedure by which judicial personnel handlecases into hidden procedure. However, the research text weren’t sufficient, and the researchmethod was single, and the researches didn’t carry out in deep level. In modern countriesregardless of federal or unitary system,local rule of criminal procedure is necessary tomaintain good order. American scholars have fully researched state rules of criminalprocedure. Research into China’s local rules of criminal procedure may provide local angel ofoperation practice and may focus on local innovations and contribute to improve criminallegislative technology. However, domestic academic circles haven’t attach enough importanceto the systemic research of China’s local rules of criminal procedure The necessary of thisresearch is to guide legislature and judicial offices and academic circles pay attention to theimportance of local operation practices and break the unified illusion which produce inunitary tradition,and drive the interaction between national legislation and local rules,andadvocate a new approach to impel judicial innovation by local pilot. This dissertation applymethods of text analysis and empirical investigation and historical investigation andcomparative study.The first charter is the summary of China’s local rules of criminal procedure, includingthe meaning and the present situation and investigation from philosophy and history. Thisdissertation take influencing rights and powers of party as standards, and research local rulesin province and city and country in China’s mainland from1997to now. As a kind of localknowledge, local rules have important experimental value to advance our countries innovationof criminal procedure, and compose the dynamic rule by law with formal law. Beforeliberation, local rules of criminal procedure in some provinces had great importance for Chinato explore and build modern law system. In the revolutionary base area period, lots of localrules of criminal procedure in Soviet governments and border region governments and JiefangDistrict governments are direct origins for new China’s law system, which have importantinfluences even now. Today every county has formulated may local rules,even There is a much more frequent tendency, but the effect of execution isn’t optimistic.The second charter is the genesis of China’s local rules of criminal procedure, includingmacroscopic level and middle level and microcosmic level. China’s mechanism ofadministration of justice determine the produce of local rules of criminal procedure. Thejudicial interpretation released by the Supreme People’s Court and the Supreme People’sProcuratorate are relatively principle, so high courts and provincial procuratorates refine them,thus deduce to the production of lots of local rules of criminal procedure. The CentralCommission of Politics and Law is the function of department for the Party CentralCommittee to lead and administrate the work of political science and law. From the Central toprovinces and from provinces to places are the mechanism to execute the Central policy. Thereality of multivariate development of criminal procedure also determine the production oflocal rules. The position of party has changed from tools used to find truth and punish crimesinto main body of criminal procedure. Diversification of methods to handle with criminalcases should be considered to realize the task of the law of criminal procedure. From themicrocosmic aspect of law practice of local authorities, local judicial offices sometimes wouldface problems which aren’t been regulated by law or emerged during executions, andsometimes they would face local special problems, in order to tackle with them, so localrules of criminal procedure would produce.The third charter is the function of local rules of criminal procedure. First, becauseChina is in the primary time of rule of law, and the law and judicial interpretation are coarse,so people made out local rules to refine related regulations. Secondly, the law practice needcommunication and collaboration and coordination between judicial offices. In transitionperiod, the standard degree of sorts of organizations aren’t high, so by making out local rulescould build mechanism of coordination between judicial offices and judicial internal officesand government departments. Thirdly, for some reasons such as unbalance and the limitationof experience,or the opportunity isn’t mature, so let the local to explore or superior select tolaunch a pilot project, thus local rules could guide these innovations. Last, Strength theadministration of judicial business and judicial personnals is important content for our modernjudicial system. Local rules help to improvement of management of judicial business andjudicial personals.The fourth charter is limitation of local rules of criminal procedure. First, local rule isagainst doctrine of information disclosure. Secondly, There lost balance between benefits in some local rules, including focus on punish crimes while ignorance protecting rights. Last,crime procedure should be regulated by law, but some judicial office who made local rulesaren’t in legal position, and some contents which breaching law arise arguments.The fifth charter is the improvement of local rules of criminal procedure. We shouldseriously treat local rules, because local rules are important supplement of law. The existenceof local rules fit to the actual society state, and the innovation of judicial offices open up arelatively reasonable gradual road. We should correctly understand the legitimacy of localinnovation and let them to explore and set up bottom line. These innovation could break intotraditional theories, and we should evaluate innovations combining the essence of constitutionand the spirit of law of criminal procedure. In order to improve China’s local rule of criminalprocedure, we should start out from current bases, and clear and publish local valid rules, thenwe should regulate the procedure of policy decision and draft and consideration anddisclosure,and we should built the system of judicial review.The conclusion shows the accomplished research and the basic conclusion in thedissertation as well as questions and directions which needed to be studied possibly.