Research On The Type Of Criminal Procedural Sanction

In the process of modernization of the rule of law in our country, the choice of such two values as punishing crimes and safeguarding human rights in criminal proceedings was so fierce that you cannot eat your cake and have it. The choice has always been the key point in restricting the theory of criminal judicature and criminal judicial reform in our country. The criminal procedure law revised in 2013 established Exclusionary Rule in the legislation for the first time. But, the Exclusionary Rule has experienced a striking contrast between "a hot discussion" and " a cold practice". Aiming at the above said practical problems, on theoretically, the author attempts to card and induct the types of procedural illegality. Set a scientific way of procedural sanction, which exists a hierarchical correspondence to some extent. What's more, the scientific way of procedural sanction is not only mutual coordination, orderly progression but also the nature, forms and degrees of the procedural sanction are different. Because it is set according to the nature and degrees of infringement, the degrees of illegality, and the harmful consequences, the Exclusion rule is regarded as one of the last and most serious way of procedural sanction. After the operation of judicial practice for nearly three years, to make up such circumstance that justice is not applied or evaded, which is caused by the absolute choice of "either exclude it or adopt it" of the Exclusionary Rule. This article is written to dredge the judicial trouble and solve the judicial problems, to make recommendations for the procedural fairness in our country. The study of the type of procedural sanction is demonstrated as the following six chapters:The introduction part, this part mainly cards and analyzes the related system and theory research of procedural sanction in China and other countries. Then, it cards, compares, and reviews the current research situation of the Exclusion Rule and procedural sanctions systematically and comprehensively. Therefore, we can find the current trouble of the judicial operation of the Exclusion Rule in our country. Based on the theoretical research, to reveal the deep-seated reasons and adjust the idea on the lively discussion in theory and indifferently attention in practice. To determine the perspective of the topic and the significance of this article:That is based on the original, fundamental motivation of "the protection and relief of rights". To set a scientific and clear boundary on "illegal evidence" and other procedural illegal behaviors, such as infringement on the citizens' constitutional rights and the corresponding litigation rights. And set a procedural sanction system, which is cohesion in the seriousness, motivates progressively and coordinates orderly. So it provides a more clear, accurate and normative theory to guide and lead the judicial practice.Chapter One:Concept and elements of procedural sanction. This part mainly explains such constituent elements of procedural sanction as the subject, object and the method of procedural sanction on the connotation of procedural sanction theory in our country. It puts forward the concept of procedural sanction. Procedural sanction in this paper means the combination of procedural sanction and running mechanism. The procedural illegal behavior, which is done by public security organs, procuratorial organs and people's courts, infringes on citizen's litigation rights, especially the litigation rights and constitutional rights of the suspect or the accused in the process of investigation, examination and prosecution in criminal litigation, and trial procedure. The illegal behavior should be corrected, made a reasonable explanation, remedied, rescinded, remade a corresponding litigation behavior, be announced invalid, and eliminate the corresponding illegal evidence according to its nature, subjective malice and degree of infringement.Then it demonstrates the necessity to classify criminal procedural sanction from three aspects, which includes the realistic requirement of the accuracy and technicalization for protection of human rights, making up the deficiencies caused by the single sanction of the Exclusionary Rule, and realizing the balance of procedural justice and entity justice.Chapter Two:This part discriminates and analyzes the concept of procedural sanction and logical relationships between it and the related categories. It mainly combs and expurgates the logic relations between procedural sanction and procedural illegality, the Exclusionary Rule, invalidation of act in action, procedural trial, and other related categories. On basis of the expurgation, it further theoretically discusses and discriminates the following four types theoretical disputes, which are prominent and tough, in aspect of judicial practice. Whether illegality means infringement? Whether infringement should be sentenced? Whether the sanction is invalid? Whether the sanction should be determined according to begin a court? At last, it puts forward that procedural illegality as the object of procedural sanction shall be narrowly interpreted as procedural illegality behaviors operated by public security organ with substantive infringement. As for the specific way of procedural sanction, it is not only limited to the Exclusion Rule or declare that litigation conduct as an absolute manner were invalid, but also be compatible with relative invalidation, correction or justification or other sanction manners. According to the aboved construction, we can set a procedural sanction system with degrees of cohesion, and it could cascade progressively and coordinate orderly. What's more, for procedural sanction to procedural illegality behavior need not to be determined by procedural trial proceedings. Except under the condition that it infringes major constitutional rights, it would be appealed to the court proceedings to implement procedural judgment.Chapter Three:The theory premise and standard of the classification of procedural sanction. This part mainly demonstrates that the classification of procedural sanction in China must be in view of different types of procedural illegality, that is, the type of procedural illegality. And procedural illegal behaviors could be divided into procedural defective behaviors, general tort procedural illegal behaviors and "constitutional tort" of procedural illegal behaviors. The standard is divided according to the types of the rights by the parties being infringed, the degrees of being damaged, whether the rights was a kind of constitutional rights or a kind of general litigation rights, and whether the infringement belongs to slight tort or serious infringement. For the above three kinds of procedural illegal behaviors, this article determines that the standards for the classification of procedural sanction should be the equivalence standard. Namely the types of the procedural sanction should be quite for the nature of procedural illegality infringement. It should be quite with the severity of procedural illegality. That is the equivalence specific criteria, which the different litigation mechanism of procedural sanction is suit for the relief urgency of the infringement of procedural illegality.Chapter 4:The first type of procedural sanctions-"corrections" or "reasonable explanation" part, which mainly demonstrated as the most slightly type of procedural sanctions for "procedural defects behavior" with the way of "corrections" or "reasonable explanation". And it specifically demonstrates the boundary between procedural defective behavior and general tort procedural illegal behavior, and analyzes the defective behavior with classification issued by the discovery procedures of defective evidence according to current judicial interpretation, including these defective behaviors from the procedure, the measure and the records of material evidence,documentary evidence, witnesses and defendant's states. However, these evidences discovered by defective behaviors do not belong to "the illegal evidence" and conversely they can be admitted in a criminal procedure after a course of making "corrections" or "reasonable explanation", in order to avoid mistaking general tort procedural illegal behaviors for these types mentioned above by identifying the boundary of procedural defective behavior and weakening the influence of procedural sanctions. Lastly, as regards to the realization of these procedural sanctions by litigation mechanism, we still inherit a traditional supervising mode which is adopted by people's procuratorate during a pretrial procedure by making timely corrections or reasonable explanations, aiming to reflect the inheritance and revolution of traditional localization.Chapter 5:The second type of procedural sanctions-"relatively ineffective" part, which mainly demonstrated specific types, including the procedural illegal behaviors in criminal investigation phase, the procedural illegal behaviors in fulfillment of compulsory measures, the procedural illegal behaviors in the supplementary investigation and withdrawing claimant during the premise of public prosecution, the procedural illegal behaviors which interfere or hinder the defense to prove sufficiently, question fully, and defend efficiently and the procedural illegal behaviors which violate litigation rights of defense lawyer. The Key define these procedural illegal behaviors as "relatively ineffective" procedural sanctions,.including three sanctions:the effectiveness for ratification,the corresponding lawsuit behavior and the programming to make corresponding decision. As for the achievement of these procedural sanctions, the establishment of a specific mechanism puts forward an innovative way to build pretrial procedures as "hearing procedures", like the "quasi-judicial investigation", organized by the people's procuratorate.Chapter 6:The third type of procedural sanctions-"absolutely ineffective" part, which mainly demonstrated "Constitutional-violation" type of procedural illegal behaviors, including procedural illegal behaviors in the phase of criminal investigation, compulsory measures, initialization procedure, terminal procedure, public prosecution and criminal trial, and also specifically analyzed the lack of regulations of infringing and procedural behaviors in judicial practice. These "Constitutional-violation" types of procedural illegal behaviors apply to "absolutely ineffective" procedural sanctions, including three sanctions: the exclusion of illegal evidence, the termination of proceedings and the quashing the original judgment and remanding for new trial. Moreover, in terms of the only procedural sanction in current judicial procedure in China is the procedure of exclusion of illegal evidence. This essay demonstrated many prominent problems existing in that procedural sanction and showed all of "Constitutional-violation" types of procedural illegal behaviors. For example, if the party wronged proposes the petition or complaint, the court should use independent tribunal with a procedure of "proceeding trail" made by pre-trial chamber. This independent "proceeding trail", carried out by the way of court trying, contains legal appeals and protests and procedural rehearing organized by the "tribunal" in court of second instance in terms of the proceeding trail in court of first instance.