Study On The Victim’s Right Of Criminal Action

The study of theory of the right of action in our country focuses on the field of thescience of civil procedure law. Although some scholars in the criminal field also pay theirattention to the theoretical study of the right of action, they put the stress on the guarantee ofdefendant’s rights. Few scholars pay their attention to victim’s right of action. Exploring theforms, contents and means to exercise victim’s right of action in criminal proceedings can behelpful to fill in the blanks in the study of the right of criminal action, can promote thedeepening of the theoretical study of the right of criminal action and establish and perfect thelegal system of protecting the right of criminal action in our country and the protection ofhuman rights.This paper systematically studies victim’s right of criminal action, which consists ofthree parts: introduction, body and conclusion.In the first chapter “The Study of Victim’s Right of Criminal Action”, the author exploresthe general theory of the right of action, the introduction of the theory of the right of criminalaction and victim’s right of criminal action.The theory of the right of action originated from the theory in the field of legal science ofcivil proceedings and then developed. Some doctrines were proposed at different times suchas “private right of action”,“public right of action”,“dual right of action”. Later, along withthe emergence of the doctrine “constitutional right of action”, the study of the right of actionexpanded to the field of criminal and administrative procedure and broad sense of the right ofaction was brought out, which made it possible to introduce the theory of the right of actioninto criminal proceedings.In the part of “the introduction of the theory of the right of criminal action”, the authoranalyzes the feasibility of the introduction of the theory of the right of criminal action anddefines the right of criminal action through the analysis of connotation and extension of theright of criminal action. Comparing with the right of civil action, the right of criminal actionis multi-staged, has the feature of public power, the diversity of subject and subject limitations,which are embodied in the public prosecution right, criminal prosecution power and the otherparty’s right of action.In the part of “victim’s right of criminal action”, the author defines the victim’s right of criminal action and points out that it is victim’s fundamental right in the light of state judicialorgans which has the following characteristics: relative independence, being restrictive, beingrestricted. Comparing with some concepts relating to victim’s right of criminal action, theauthor proposes the following viewpoints: admitting the principal role of public prosecutiondoesn’t deny victim’s right of criminal action and victim and public prosecution organs areboth relatively independent subjects of the right of action; victim’s right of criminal actionand the right of civil action are two of different nature, which result from the criminalinfringement upon victim, apply to different proceedings. As to victim’s rights in criminalprocedure, the right of action is the cause and the procedural rights are the result. The formeris the basis of the latter and the latter is the forms of the former.In the second part “The History and Developing Tendency of Victim’s Right of CriminalAction”, the author studies the historical development of victim’s right of criminal action inforeign countries, the historical transformation of victim’s right of criminal action in Chinaand points out that it is the common trend of world development to strengthen the protectionof victim’s rights in criminal judicial procedure.Firstly, the author systemizes the four historical stages of victim’s right of criminal actionin foreign countries. In slavery stage, victims were not the real subject of the right of action,although they had relatively complete right to prosecute crimes since state power seldomintervened in it. In the mid-late stage of feudal society, with the establishment of the system ofinquisitional action in European countries, victim’s right of prosecution were separated bystate and victims began to fail in the control of proceedings. In capitalist society, victim’ rightof prosecution continued to be weakened because of the existence of the right of publicprosecution and the expansion of defendant’s rights. Since the nineteen sixties, the issue ofprotecting victim’s rights has drawn the international community’s attention and manycountries have made it an important aim in the reform of criminal judiciary.Secondly, the author, through the historical research of victim’s right of criminal actionin our country, has gotten the following implications: a. the stipulation about victim’s criminalprocedural rights in the Western Zhou period was more complete than that in the westerncountries of the same period; b. in feudal society, the right to prosecute was owned by thestate so as to maintain the feudal monarchy rule and victims became the ones who had theduty to assist the state’s prosecution whose status was lower than those in European countries.It began not until the modification of the law in the late Qing Dynasty, victims were endowed the right to prosecute crimes and the right was gradually widened. In1996,“CriminalProceedings Code” was revised in which victims’ role as litigant was written down whichconforms to the world developing trend that the protection of victim’s rights are more andmore emphasized..In the third chapter “The Theoretical Basis of Victim’s Right of Criminal Action”, theauthor tries to demonstrate from the following four aspects: theory of human’s subjectivity;idea of revenge; theory of judicial relief.Although victims are naturally litigant in criminal case, they have been deprived of theright to prosecute which are owned by litigant for a long time. Humans are subject withreason. Based on humanity and dignity of human, victims’ personality should beacknowledged and respected. State should provide effective guarantee to realize victim’ssubject status in criminal proceedings.The idea of revenge held by victims is reasonable in a certain stage although it violatescivilization. The idea provides the profound psychological basis for victims’ owning criminalprocedural rights. It also explains to some extent victims own the right to plea for penalty andsupports the idea that victims should own criminal procedural rights.From private relief to relief by public force, the country under the rule of law makesjudicial power passive, neutral, exclusive and ultimate for the benign operation of judicialpower. In the relief of criminal judiciary, the doctrine of power(right) balance shall be obeyed;prosecution organs should be established; prosecution and trial should be separated so thatjudicial power would not be abused. To endow limited right to direct action and sufficientprocedural rights to victims in the cases of public prosecution can realize effective supervisionto the unlawful use of the right of public prosecution. Moreover, the doctrine of interestbalance should be obeyed, so we should balance and coordinate the relation between victim’sright of criminal action and the right of public prosecution and fully protect the rights of theother party.In the fourth chapter “The Exercising and Perfecting of Victim’s Right of PrivateProsecution in the Cases of Private Prosecution”, the author focuses her study on thefollowing four issues: a. the historical development and value orientation of victim’s right ofprivate prosecution; b. the research on the extraterritorial law about the relation betweenvictim’s right of private prosecution and public prosecution; c. the practical measurement ofvictims’ exercising the right of private prosecution in our country; d. some suggestions for perfecting the system of private prosecution in our country.From the perspective of development tendency, victim’s right of private prosecution hasbeen gradually weakened. Victim’s right of private prosecution is reasonable and necessary inthe proceedings for it has the value of protecting human rights, can limit and balance powers,balance interests, improve efficiency and make harmonious society.After the extraterritorial research on the relation between victim’s right of privateprosecution, the author concludes that there are three modes: a. mode of public monopolyrepresented by America and Japan; b. mode of public-prosecution-based supplemented byprivate prosecution represented by German, France and Russia; c. mode of co-existence ofpublic prosecution and private prosecution represented by Britain and Taiwan. In spite of thedifferences of these three modes, the following implications can be lightened: a. publicprosecution has been the major means to exercise the right of criminal prosecution in moderntimes; b. the exercising of the right of private prosecution has been limited to a certain extent;c. the protection of victim’s rights has been strengthened.As to the issue “the practical measurement of victim’s exercising the right of privateprosecution in our country”, the author first summarizes the legislated defects about victim’sright of private prosecution stipulated in “Criminal Proceedings Code” and points out theremainly exist the following problems: the range of cases of private prosecution has beenunreasonably widened; the stipulation about the range of the second type of the cases ofprivate prosecution is inattentive; there exist serious legislated defects about the third type ofcases of private prosecution; the standard for whether to place a case on file or not is too high,and so on. Then the author demonstrates that exercising the right of private prosecution andpublic prosecution contradict each other and it’s difficult for victims to make privateprosecution in our country’s judicial practiceAbout the “suggestions for perfecting the system of private prosecution in our country”,the author expounds systematically in two aspects. Firstly, we should temporarily adopt andobey the doctrine of public-prosecution-based supplemented by private prosecution andappropriately narrow the range of cases of private prosecution. Secondly, we should establishand perfect the guarantee system for victim’s exercising the right of private prosecution in ourcountry. In accordance with those above mentioned, the author proposes some suggestions forlegislation as follows: to establish the informative system of private prosecution to protectvictims’ right to know, to establish choosing mechanism in and between the right of public prosecution and private prosecution to avoid the contradiction in exercising the two differentrights, to lower the standard in deciding whether to place a case of private prosecution on afile or not to protect victims’ right to start proceedings, to establish the system for privateprosecution undertaking to enforce procuratorial organs to participate in the cases of privateprosecution, to perfect the system of consignment agency and adopt the lawyers’ enforcementagency in the cases of private prosecution in our country.In the fifth chapter “The Exercising and Perfecting of Victim’s Right of CriminalProsecution in the Cases of Public Prosecution”, there are five parts: a. brief introduction; b.victim’s right of complaint and its perfection; c. victim’s right of appeal and its realization; d.victim’s right of petition and its perfection; e. victim’s right of penalty proposal andinstitutional establishment.The author first analyzes victim’s litigant status in the cases of public prosecution in ourcountry from the perspective of the right of action and thinks that victim, as the subject of theright of criminal action, should be endowed litigant status. The author then points out thatvictim’s exercising the right of action in the cases of public prosecution should obey the basicdoctrines of independence, complement and restriction. Besides, the author briefly explainsthe characteristics of victim’s exercising the right of criminal action in the cases of publicprosecution in our country.In the second part, the author analyzes the stipulation about victim’s right of complaint in“Criminal Proceedings Code” available in our country, makes a complete and systematicanalysis and demonstration of the problems existing in victim’s exercising the right of actionin our country’s judicial practice and the causes. To perfect the legislation of guaranteeingvictim’s right of complaint in our country, we should lower the standard for placing a case ona file, strengthen the input function of starting criminal proceedings, perfect the mechanism ofsupervision and control of the investigation organ’s decision whether to place a case on a file,establish the system criminal case dismiss participated by victims, establish the system ofChinese enforcement prosecution.In the third part of this chapter, the author clarifies the theoretical disagreements aboutwhether victims should be endowed the right of appeal. Based on the affirmative idea thatvictims should have the right of appeal in the cases of public prosecution, the author furtherdemonstrates that endowing victims the right of appeal is very significant to guarantee thecompleteness of victim’s right of action, restrict jurisdiction, make complements to the public prosecution.In the fourth part, the author defines and classifies petition, criminal petition and so onfirstly and points out victim’s retrial petition has the legal nature of action. Secondly, theauthor comparatively investigates the relief mechanism of effective judgment in the civil lawcountries and emphatically expound the implications of the effective judgment reliefprocedure in civil law countries on the reform of the procedure for trial supervision in ourcountry based on analyzing and summarizing of the characteristics of the effective judgmentrelief procedure in France, German, Japan and Russia. Lastly, the author makes a deepanalysis of the problems existing in present China such as: it’s difficult for victims to exercisethe right of petition; it’s difficult to start the retrial procedure; victims excessively exercise theright of petition make repetitive petition. Furthermore, the author affirmatively proposes toestablish retrial action based on the right of action in our country.In the fifth part, the author introduces the legislating situation of victims’ participation inpenalty in foreign countries, responds to the disputes resulting from victims’ participation inthe practice of penalty in our country, points out that it is significant and practical to endowvictims the right of penalty proposal. At last, the author proposes to establish the penaltysystem with the participation of victims at legislation level and points out that some specificsystems, say lawyer’ enforcement agency, should also be adopted to avoid victims’excessively use of the right of penalty proposal.