On The Reconstruction Of Criminal Private Circle Of China

China implements a double-rail criminal prosecution system:public prosecution and private prosecution, wherein public prosecution dominates and private prosecution just takes a supplementary role. These two systems constitute the Chinese criminal prosecution system. Among the system of criminal private prosecution, the demarcation of criminal private prosecution circle, namely the coverage of private prosecution cases, is of vital importance to the theory and practice of criminal private prosecution system. The rationality and perfection is basic to the realization of criminal private prosecution and the performance of criminal justice. The revised criminal procedure law in 1996 enlarges protection on the victim’s benefits; it orientates in crime control and gives detailed and break-through stipulation on the private prosecution system to expand the applicable scope of the private prosecution system substantially, wherein it is characterized in stipulating the private prosecution’s supervision on public prosecution, of which the legislation idea shall be affirmed. Due to the legislation technology’s disadvantages and the lack of related systems, however, there are lots of problems in setting the procedure, and the result of its practice is not good as expected and is obviously far from the original legislation objective. The issue is not involved in the Criminal Procedure Code of 2012. Therefore, it is necessary to have a systematic analysis on the private prosecution circle, studying its generation and source and learning from our history and other countries’advanced experiences so as to find out the deficiencies existing in Chinese criminal prosecution system. We would try to rationally analyze the criminal private prosecution and re-devise the criminal private prosecution circle based on these deficiencies.The thesis consists of eight parts.The introduction gives some detailed description of the topic background, research trend at home and abroad, research meaning, research ideas and methods, as well as the innovations and disadvantages of the paper.Chapter One discusses the legitimacy of the existence of criminal private prosecution. The existence of criminal private prosecution system has historical inevitability, which is the result of some basic theory of the interaction of private prosecution system. The basic theory of the formation of the modern system of private prosecution played a positive role in promoting the constitution of the theoretical basis of private prosecution system, as well as the legitimacy and rationality inherent basis for its existence. Right of action theory, theory of criminal victims, criminal modesty theory, and litigation consensual theory of restorative justice are all the theoretical basis of criminal private prosecution. Meanwhile, the criminal private prosecution has played roles in making up for deficiencies in the institutional value of prosecution system, the economic value of effective conservation of justice, to meet the diverse needs of the social value of the subject, and reflecting the implicit principle of mutual concealment between the relatives and other legal values. Meanwhile, it can reflect the fundamental principles of criminal law and practice the criminal policy of combing punishment with leniency.Chapter Two discusses the mode of private prosecution circle. According to the legislation status of major countries (regions) in the world, the circle is divided into the mode of exclusive private prosecution, the mode of coexistence of private prosecution and public prosecution and the mode of lack of private prosecution. Exclusive private prosecution doctrine mode, which was mainly present in the early criminal law, existed mainly in the Roman law, the ancient Germanic law and the legislation of the United Kingdom before 1879.The coexistence pattern of public prosecution and private prosecution is the most complicated circumstance and has the largest number in the world. According to the relationship between the public prosecution and private prosecution, the coexistence pattern can be further divided into the pattern of equal status between public prosecution and private prosecution, the pattern of public prosecution undertaking private prosecution, the pattern of private and public prosecution evenly divided and the pattern of multiple relations between public prosecution and private prosecution etc. The pattern of prosecution monopoly may have the same result while for different reasons. The reason of America derives from the system of grand jury, the reason of Japan comes from the prosecution exclusiveness, and the reason of France comes from the existence of civil plaintiff system, while the reason of Italy comes from the crimes being handled only upon complaint. Although the expanding of the scope of public prosecution in the criminal prosecution system and the shrinking of private prosecution has become a worldwide trend, the system of criminal private prosecution still has great vitality. Even in the countries without criminal private prosecution system, there still exists similar system embodied the role of criminal private prosecution, and there are some similar characteristics in the contents of criminal private prosecution among different systems, which may provide external experiences for the reconstruction of Chinese criminal private prosecution.Chapter Three discusses the necessity of reconstructing our criminal private circle. The current criminal legislation did not clearly stipulate the private prosecution circle, which causes lots of problems in practice as well as difficulties for the judges. The phenomenon of private prosecution becoming public prosecution is serious and critical. The proofing standard demanded is much too strict. The right to choose prosecution or private prosecution leads to the unjust results. The type of private prosecution is imbalance. In the current three types of private prosecution cases, the scope of the crime to be handled only upon complaint is unreasonably much too wide, for the crime of abusing a member of one’s family and the crime of embezzlement should not be included in, and the private prosecution criteria of the crime of insulting and the crime of defamation are far behind clear, which results in the risk of abusing the litigation; the scope of the minor criminal cases of which the victim has the evidence is not clear and there lacks the conflict resolution mechanism between the co-existing private prosecution and public prosecution; and the scope of the private prosecution indictment is contradicting, which results in confusion of lawsuit relationship and should be adjusted and reconstructed. Due to the stringent requirements for the private prosecution evidence hearing system, the simple ness of private prosecution trial system, the lack of supervisory system of private prosecution and the roughness of relief system of private prosecution provisions and other unknown causes, a private prosecution under the criminal private prosecution circle is more in name than in reality.Chapter Four discusses the factors affecting the criminal private circle.A series of political, economic, social, psychological, historical and cultural factors, etc., influence and determine the range of criminal private prosecution cases. Criminal Private circle when designated to be influenced by political factors and philosophical factors. It is also affected by the reality restricted by new acquaintances society and civil judicial resources such as community, the degree of tolerance for wrongdoing by the society, and the strength of the evidence to measure the ability of citizens as well as the impact of the international legal environment for local legislation.Chapter V presents the specific ideas of reconstructing the Chinese criminal private prosecution circle. This chapter systematically elaborated the philosophy and the detailed design of reconstructing criminal private prosecution circle. We should persist in the principle of coordinating the public prosecution and private prosecution, the principle of combining the certainty and flexibility, the double low principle in both the nature of case and the social harm degree, as well as the individuality principle of legal interests infringed. It is suggested that the criminal law should exclude from the private prosecution circle the crime of interfering with the freedom of marriage by force, the crime of abusing a member of one’s family and the crime of embezzlement, while add the property crime between relatives and the crime of insulting the body, crime of intruding into others residential, crime of negligently injuring seriously occurring between relatives without any other serious circumstances, rape crime occurred during the marriage relationship’s existence without any other serious circumstances, serious compulsory indecent women crime occurred during the marital relationship’s existence without any other serious circumstances ect. Narrow the application scope of "lighter criminal cases that the victim has proof to prove". For the "transition of public prosecution into private prosecution" case, the almost-non-existent state should be changed through institutional reform. It should be separated from the scope of private prosecution case, and set as an independent institution, the nature of which should be concluded as the "victims applying for judicial review" system. The paper has proposed specific systems and applications for the "victim applying for judicial review" in a more detailed design. Based on the above specific system design, the idea of dynamic private prosecution circle" is proposed. The criminal private prosecution circle is not invariable. On the contrary, it develops with the development of society and needs to be constantly adjusted.Chapter VI establishes the supplementary system for reconstructing the Chinese criminal private prosecution circle. The boundary of criminal private prosecution is not a simple case of a border point between criminal public prosecution and private prosecution, it is affected and also affects a variety of other related systems. Only by reasonably constructing the matching system, can the criminal private prosecution circle better play its role. First, the evidence system of private prosecution is adjusted, which strengthens the rights of private prosecutors to gather evidence, and improve private prosecution’s evidence-gathering capabilities. The second is to regulate the system of private prosecution in the trial, mainly from four aspects:the establishment of private prosecution aging system, the reducing of the private prosecutor to review the conditions for prosecution standard, the refinement of competing private prosecution indictment and the adding of absence trial system. The third is the perfection of sound supervisory relief system of private prosecution, including perfecting the adjudication supervision system and establishing the compulsory agency system for the criminal private prosecution and the strengthening of criminal victims legal aid system. Fourthly, a system of prosecution assistance system is establishedin order to clear procedures for handling public security organs of private prosecution, and to build a reasonable system of private and public prosecution convergence mechanism.The conclusion states that at the moment of the worldwide diversification,, the legal system designed to reconcile the values of rationality, tolerance, progressiveness would have a stronger vitality. The rationality of tolerance is the particular character traits of the criminal private prosecution system, and the humanized criminal private prosecution system should prevent the overly aggressiveness and expansion, and maintain self-control. Criminal proceedings should adhere to a wide and rational spirit of justice, reconstruct the appetency between the law and the people by humanistic care. The judiciary should be to practice a tolerant judicial spirit.