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On The Improvement Of China’s Criminal Compulsory Medical Procedure

Posted on:2016-01-16Degree:DoctorType:Dissertation
Country:ChinaCandidate:X F ZhangFull Text:PDF
GTID:1226330467481411Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
The promulgation of Criminal Compulsory Medical Procedures has created animportant innovation of criminal compulsory medical judicial review, which means amilestone for China. As an emerging criminal lawsuit procedure, it still has a longway to go. Due to the deviations of legislative recognition, the legislative purpose ofthis procedure lays particular stress on social defense. Meanwhile, the litigationconception cannot be applied to the implementation of this procedure, which bringsout some administration features. Under the action of these two actors, mentalpatients’ rights cannot be protected properly. What’s more, there are also somelegislative defects existing in this procedure, including narrow applicable objects,fuzzy applicable condition, obstructed engagement with related procedures,ineffective procurator supervision, etc.The improvement of Criminal Compulsory Medical Procedures should aim tostrengthen the protection of the mental patients’ rights and strengthen an effectiverestriction on power as well as special protection of the mental patients’ rights. Inorder to make up for the defects about the litigation of this procedure, the litigationconception should undoubtedly lead the entire procedure and improve it towards thedirection of further litigation. The relationship between Criminal Compulsory MedicalProcedures and Common Criminal Proceedings should be independent and contextual,which emphasize differently on the matter of trial. Necessary regulations should bepreceded combining with proceedings traits in reference to basic principles ofCommon Criminal Lawsuit to meet special needs of protecting the mental patients’rights and judicial practice.The improvement of Criminal Compulsory Medical Procedures in Chinaincludes:1.As for the improvement of entity elements, the sphere of target audiencehas enlarged to restricted responsible criminals as well as prisoners, which can beexpanded to persons who are not able to be on trial when conditions permit; At thesame time, it is necessary to subdivide the applicable conditions by clarifying themain body determinants, concerned factors and proofs about judging the socialdangers;2.As for the improvement on Criminal Compulsory Medical Procedures indetails, it is necessary to regularize the behaviors of Public Security Bureau on thelegal procedures and deprive the right of People’s Court’s to launch the procedures directly;3. As for the Temporary Protective Restraint Measure, applicable conditionsshould be clarified and Public Security Determining Mechanism should be replacedwith People’s Procuratorate and the People’s Court Decision Mechanism. At the sametime, the timeline of this measure and its relationship with other compulsory measuresas well as the justification problems which are originated from the decision of thismeasure should also be made clear. Local Ankang Hospitals are appointed as theexecuting agencies while the remedy mechanisms should be established whenconstrained persons refuse to accept the decision that is made according to thismeasure;4. On building scientific trial proceedings: the cases which are in disputeshould be tried complying with the trial and justification procedures while the caseswithout disputes should be tried simply; The remedy proceedings of Second Instancein Trial should be built by replacing the First Instance Final Judgment System withSecond Instance Final Judgment System, endowing compulsory medical receivers aswell as their legal representative and their immediate relatives the appeal right whenthey refuse to accept the judgment results from the court and retaining thecounter-appeal right of the People’s Procuratorate when the criminal compulsorymedical application is rejected.5. In respect of constituting litigation dissolvingproceedings, the criminal compulsory medical trial procedures should be referred toand disputed cases which are related with the possibility of social dangers made bycompulsory medical receivers should be tried restrictedly;6. Regarding to theimprovement of enforcement procedures, the enforcement means should bediversified by changing the singular hospital care principle into the combination ofhospital care, clinic care and suburb medical care, giving priority to set local AnkangHospitals as main enforcement places while appointing some qualified medicalinstitutions as standby selections and setting a deadline of6months for evaluation.Criminal Compulsory Medical Procedures should be carried out by coordinatingother criminal lawsuit segments. It is necessary to improve the launching proceedingsof currency running judicial mental diseases authentication and to strengthen theremedy mechanism of victims’ rights related with withdrawal cases ornon-prosecution decisions. With respect to the launching proceedings of judicialmental diseases authentication: on one hand, the judicial mental diseasesauthentication that is launched by public security organs in accordance with theirpowers should be rationalized through clarifying the review behaviors beforelaunching and internal decision behaviors. On the other hand, mandatory launching mechanism about judicial mental diseases authentication should be built whenapplicants can provide related proofs so as to prove actors as possible mental patients.In regarding to strengthen the remedy mechanism of victims’ rights related withwithdrawal cases or non-prosecution decisions: on one hand, the right protectionmechanism should be maintained when victims refuse to accept the decisions that aremade by Public Security Bureau about withdrawal cases through strengthening thepersuasiveness of the decision letters about withdrawal cases, endowing victims thereview power and rationalize the legal supervision means of the People’sProcuratorate. On the other hand, victims’ rights protection mechanism should bemaintained when victims refuse to accept the non-prosecution decisions made by thePeople’s Procuratorate through strengthening the persuasiveness of non-prosecutiondecision letters and building the judicial review mechanism before trials.There are two possible innovative aspects in this essay. The first innovativeperformance is reflected in its research ideas: the direction of mental patients’ rightsprotection, litigation, the compliance with basic principles about criminal lawsuit andother special stipulations related to Criminal Compulsory Medical Procedures shouldbe followed on the basis of discussing some basic factors on the connotation,extensions, value and particularity of Criminal Compulsory Medical Proceduresthrough the discussion of the basic problems of Criminal Compulsory MedicalProcedures. The second performance is reflected in its academic viewpoints: someinnovative perspectives can be found in this essay, including discussions about thelawsuit conception, the relationship between Criminal Compulsory MedicalProcedures and Common Medical Proceedings and set a series of differentiableCriminal Compulsory Medical Procedures, etc.
Keywords/Search Tags:Mental Patients, Criminal Compulsory Medical Procedure, Rights Protection, the Procedures Litigation, the Judicial Authentication of Psychosis
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