Font Size: a A A

Research Is Involved In Human Rights Prosecution Procedures

Posted on:2014-12-19Degree:DoctorType:Dissertation
Country:ChinaCandidate:W JiangFull Text:PDF
GTID:1266330401469665Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
As the core task of criminal procedure is to solve the problem of the conviction and sentencing of the accused, the whole criminal procedure is closely bound up with the interests of the accused. According to the basic requirement of the due procedure theory, such opportunities of substantively participating the procedure as statement and defense should be given to the interested person when making a decision. Moreover, the opinions of the interested persons shall make great impact on the decision. As a subject of the lawsuit, in which the accused may be subject to criminal punishment, the accused shall have the basic procedural rights which can reflect subjective position of them, such as the right to know, the right of presence, the right of defense and the right of relief. To really enjoy the rights of procedural participation means that the accused shall not only have the opportunity, but also have the ability of substantively participating, which can actively influences the procedure and the decision. In light of the value function of the right of procedural participation, giving the right of procedural participation to the accused can not only tamp the intrinsic foundation of the due procedure by fully approving the moral subjectivity of the accused, but also improve the actual effect of the re-socialization reformation of the accused by the realization of substantial justice. Thus, it is the indispensable competent in the democratic and legal reformation of criminal procedure to construct a perfect procedural participation system of the accused.In foreign legislation, the majority of countries and international legislation recognize the right of procedural participation of the accused on account of the subjective position. What’s more, this right is improved to be protected by constitution in some countries. With the awareness of human rights and democracy, legislation in our country pays more and more attention to the real enjoying of the right of procedural participation of the accused, and optimizes it through revising laws. However, as the result of such factors as the deep influence of the traditional culture, the biased choice of lawsuit value, the infiltration of power doctrine, and the lack of legislative external environment, the subjective position of the accused has still not be thoroughly recognized in the legislation of our country, the accused can not get the full opportunity of procedural participation due to the defect of the procedure structure, and the impact of participation on the judicial adjudication is limited for the incompetence of the accused with incomplete right. All of the above stated prevent the value function of the judicial procedure working properly. Therefore, this thesis puts forward the means of reformation to enhance the right of procedural participation of the accused on the basis of the analysis on such factors as historical culture, social politics, legislative environment and judicial practice at home and abroad. Besides the recognition of the subjectivity of the accused by the social populace to correct the vicarious views of essence, right and procedural value, the ideal construction this thesis proposes needs to deepen the reformation of social politics and judicial system, and build a litigation structure with rational division of functions to optimize litigation mode, which enhances the right of the accused and improve the right to know, right of defense, right of relief and so on. In this way, the accused can enjoy the right of procedural participation, with which the accused can participate in the procedure positively, actively, independently. Thus, the democratization and civilization of criminal procedure can be realized effectively as the criminal procedure acquires its legitimacy rationality.
Keywords/Search Tags:The accused, Right of procedural participation, Subjectivity, Equality between prosecution and defense
PDF Full Text Request
Related items