Study On The Theory And Practice Of Conviction

Conviction is a practical activity, therefore the theoretical study should not only focus on the establishment of statics theory system, and we should focus more on the practice of conviction, response to many questions emerged in practice. Base on this idea, the author does not intend to establish a perfect system of conviction theory, but to review the basic questions in the conviction theory, then the author would focus on the phenomenon of "uncertainty" in the conviction practice. Firstly the author analyzes the types of conviction, and proves the value and necessity of the existence of uncertain conviction. Secondly, the author analyzes the uncertain factors in the conviction, and determines the space existence of uncertain factors in legal rules, and these could be the reference to determine the certain conviction and uncertain conviction. Then the author had studied the operation condition of uncertain conviction based on the investigations and surveys in practice, and point out the main shortages and problems, then the author composes the uncertain conviction. The author is intending to study on the uncertainty conviction, not for the conventional, but want to draw attentions of criminal law scholars on the uncertain conviction.In the first chapter, the author redefines the concept of conviction. The conviction should be regard as the activities of judicial and procuratorial organs to punish the crime and protect the human rights to determine the crime type, number of the criminal suspects and defendants. The author also analyze the characteristics of conviction, and point out that the conviction should have the characteristics including the mission and initiative meaning of judiciary, also it should be bound by substance and procedural factors. Also the author studied the principles, weighing elements of conviction, etc. The conviction should have three basic principles including the legal boundary, policy guidance, social effect examination. And the author proposes the importance of weighing factors in conviction, and discussed the effect of social situation, victim condition, public opinion and territory differences on the conviction.In the second chapter, the author had proposed the concept of conviction types, and point out that there’re also exist two types of conviction in China, including the certain conviction and uncertain conviction:a kind of conviction under the situations that the fact is clear, behavior nature is certain, legal boundary is definitely, or maybe a little vague but could be clear after the explanation. This type of conviction is very certain in the application of laws; another type of conviction is under the uncertainty of evidence, proving standards, behavioral nature, or the legal interpretations are vague, or the judicial organs make the conviction under the criminal policy. This type of conviction is not stable and the application of laws could be altered, and it is comparatively unstable. The former is certain conviction, and later is uncertain conviction. Then the author analyze the features of uncertain conviction, and point out the different expressions of uncertain conviction:(1) the legal rules are explicit, and the judicial organs could select among two or more results, and there could be "may" or "might" in these rules;(2) legal concept and constitution of legal rules are necessary to be refined or re-explained;(3) the evidence selecting and proving standards are vague and uncertain, therefore the fact affirm is still flexible;(4)the nature of activity is vague and hard to be determined;(5) considering the requirement of criminal policy, other factors should be considered to make the result of none criminal under some conditions. The author weighed the value of uncertain conviction based on abovementioned circumstances.In the third chapter, the author analyze the uncertain factors exist in the legal rules, and make sure the existence of uncertain factors in the legal rules and its boundary, this is helpful to differ the uncertain conviction and certain conviction, and also benefit to avoiding the abuse of conviction. In the substance law, the author analyzes the uncertain factors in the criminal concept in criminal law, and points out the importance of Article13in the Criminal Law. Second, the author concludes the uncertain factors in the specific provisions of Criminal Law, and analyzes the uncertain factors on the perspective of charges in indictment, factors of constitution, crime elements amount, etc. In the field of procedure law, the author analyzes the evidence standards and evidence rules in Chinese law based on the comparative study on Chinese and foreign laws. The author pointed out the reasons of uncertainty in the proving procedure, and discussed the problems of lacking of hierarchy and deficiency in the operations, and also the deficiency in the evidence ability, adoptable of evidences, etc.In Chapter4, the author reviews the practices of conviction, especially on the cases of fact recognition, behavioral recognition and the application of laws in16cases study. Through the case study, the author analyzes the uncertain factors including the dealing procedure, result and reasons. Also, the author points out the problems including the concept of judicial personnel in the determination of conviction, avoidance of the judicial disciplines in conviction during the working procedure, lacking of the knowledge of uncertain conviction, lacking of relevant conviction rules, etc. In the fifth chapter, the author proposes the plan to regulate the uncertain conviction. First of all, we should establish the right concept of conviction; secondly, interpretation of substance law should be regulated. The inclination of judicial interpretation should be turned, and part of the interpretation power of uncertain conviction should be released to the judicial personnel. The judicial interpretation is necessary to be regulated according to the unified rules. Also the principle of academic interpretation of laws should be established. The abuse of judicial power should be avoided, therefore the execution of criminal law policy should be mentioned, and the limits of conviction should be determined strictly. And the case law guidance of uncertain conviction should be released for consult. Thirdly, the procedure issues of conviction should be improved and perfect. The standards and rules of fact recognition should be improved, the concept and tackling principle on difficult and puzzle crimes and cases should be determined, and the specific working system and rules should be reformed and improved.