| China's Criminal Procedure Law has been modified twice in 1996 and 2012,and its content layout,chapter style,text structure and linguistic expression have been obviously optimized.However,there is still much room for improvement in terms of the legislative technique of the existing law because the academic circles of criminal procedures mainly focus on the research of the value and countermeasures instead of the legislative technique.Since the 18 th CPC National Congress,"improvement of the legislation quality" has been clearly advocated,and the new path of legislative reform has been re-established.Undoubtedly,timely modification or explanation of the Criminal Procedure Law required by the justice reform in such context should be supported by the advanced legislative technique,which contains a lot of legislative technical issues to be further summarized and explored.In addition to the introduction,this paper discusses the aforesaid issues in five chapters and the main contents are as follows:The first chapter mainly studies the reasonable relationship between Criminal Procedure Law and the Constitution,Organic Law of the People's Courts,Organic Law of the People's Procuratorates,Criminal Enforcement Law and Lawyers Law,and the provisions of aforesaid laws should be reasonably connected and properly distinguished.The close relationship between Criminal Procedure Law and the Constitution requires that the two laws must interact with each other in terms of the legislative content.The development of the Constitution should take into account the trend of the development of modern criminal proceedings,take a moderate forward thinking on the basis of respect for national conditions,and create space for the development of Criminal Procedure Law;the development of Criminal Procedure Law should hold high the banner of "respecting and protecting human rights",endeavor to implement and carry forward the spirit of the Constitution from national conditions,and provide support for the development of the Constitution.Criminal Procedure Law should avoid overlapping with Organic Law of the People's Courts,Organic Law of the People's Procuratorates,Lawyers Law and Criminal Enforcement Law in terms of the provisions and content,so as to save the legislative resources and avoid unnecessarily increasing of the legislative cost arising from the “linkageeffect of law amendment”.Organic Law of the People's Courts and Organic Law of the People's Procuratorates mainly stipulates the "organization" of the people's court and the people's procuratorate.Organic Law of the People 's Court should not stipulate the content of concrete procedure of trial of criminal cases,but it should stipulate the provisions of open trial,the system of the court of second instance being the court of last instance and trial organizations which should not be stipulated by Criminal Procedure Law any more.It is improper for Organic Law of the People's Procuratorates to stipulate the procedures for the procuratorates to exercise their rights to conduct investigations,determine whether to approve arrest and initiate public prosecutions;the supervision rights of the procuratorates in criminal procedures may be provided by Criminal Procedure Law and Organic Law of the People's Procuratorate at the same time,but should be of different levels of detail.With the premise of enacting a unified Criminal Enforcement Law,we may learn from the legislative model of Russia in terms of the content of the Criminal Enforcement Law which stipulates the execution subject and execution procedure of various penalties,the protection of human rights of criminals and the methods of rectification of criminals etc.Criminal Procedure Law only stipulates the hand-over procedure and the execution of the modified judicial adjudication procedures.We may learn from Taiwan's legislative pattern concerning the content division of Criminal Procedure Law and Lawyers Law.Criminal Procedure Law stipulates the matters concerning the participation of the lawyers in the criminal procedures,especially the litigation right,while Lawyers Law shall stipulate the general provisions of the obligations of lawyers in the course of practices,rather than relevant matters concerning the participation of the lawyers in the criminal procedures.The second chapter focuses on the frame design of Criminal Procedure Law.For the purpose of improving the quality of legislation,it is necessary to adopt a reasonable chapter structure technique in the law which may facilitate the users to find the articles quickly and accurately,and also help the interpretation of law.The chapter design of Criminal Procedural Law has distinct characteristics of the theory of litigation stage,and has strong inclusiveness,but some aspects of the chapter arrangement need to be improved.Under the background of the reform of the criminal procedure system with trial as the center of all criminal procedures,the scope of summary procedure should be expanded and separate chapter for summary procedure should be established in future revision of Criminal Procedure Law.The pretrial conference should be revised to the “pre-trial procedure” and separate chapter should be set,and the content of the “Evidence” chapter should be extended with separate sections.The selection of the basic principles of Criminal Procedure Law and the validity clauses are the two key points in the general provisions of the existing law.For the "General Provisions" of Criminal Procedure Law,this paper will discuss about the selection and effectiveness of the basic principles of Criminal Procedure Law.The selection of the basic principles should be consistent with the inherent provisions of the principle of law,cover the whole process of criminal proceedings and embody the value of Criminal Procedure Law.The basic principles of Criminal Procedure Law should still adhere to the provisions stipulated in a centralized way.The validity clause of Criminal Procedure Law involves the spatial validity,the validity to the subject and the time validity.Drawing on the experience of Russian legislation,it is necessary to stipulate the validity clause in Criminal Procedure Law.The provisions of spatial validity and the validity to the subject can dock with the provisions of Criminal Law,but the time validity is totally different from Criminal Law.Considering from litigation efficiency,the rights of counterpart and the power of res judicata,Criminal Procedure Law may specify the time validity provisions with the principles of new and beneficial to litigants.The contents of the provisions of Criminal Procedure Law should be consistent without conflict or the possibility of misunderstanding;the content of the provisions should be relatively independent,a provision can only stipulate a content,and the same content can only be provided in the same provision without unreasonable repeat or split;the position of a single provision should be appropriate,and multiple provisions should be in reasonable order,so as to facilitate readers to reduce the page turning and quickly find the provisions they want.The "Supplementary Provisions" of Criminal Procedure Law should stipulate the judicial interpretation power of the Supreme People's Court and the Supreme People's Procuratorate as well as the implementation time of the law.After each amendment to Criminal Procedure Law,the time clause in its supplementary provisions shall be amended accordingly.The third chapter mainly discusses the internal structure of Criminal Procedure rules based on its value standpoint of controlling public power and protecting private rights.Legal rules consist of behavior pattern and legal consequence,and shall not be deemed as articles directly.Legal rules consist of behavior pattern and legal consequence.The rule of Criminal Procedure Law can generally be divided into authorization rules,obligatory rules and complex rules of right and obligation.There are many differences between the logicalstructure of Criminal Procedure Law and that of Criminal Law.As far as the authorization rules are concerned,Criminal Procedure Law should stipulate the authorization way reasonably,and the authorization content should be clear and concrete and try to reduce judicial discretion as much as possible.It shall try to establish the considerate obligations of public authorities while conferring power to such authorities,and also set the rule of right relief to effectively promote the realization of rights.In terms of the obligatory rule,declarative standpoint shall be avoided when creating the obligations,and the cautioning standpoint should be avoided when establishing the elements of legal consequence.In terms of the complex rules of right and obligation,the authorization should be clearly specified.Besides the complex rules of right and obligation,necessary power control mechanism should be established to prevent the public authority from deviating from the legislative purpose and leading to substantial abuse of power.The People's Procuratorate's supervision of investigative power should be maintained,while the procuratorates' supervision power over the court's trial activities should be abolished.The procedural jurisdiction of the second trial and retrial shall be strengthened and the discretionary power control in criminal proceedings shall be fully covered.The obligatory rules and complex rules of right and obligation of criminal procedures should highlight the function of controlling the public power.The obligatory rules and complex rules of right and obligation in the Criminal Procedure Law should focus on the control of public power.Where public authorities violate their statutory obligations or fail to conform with legal requirements when exercising their powers and thus seriously damage the private rights,statutory sanctions should be established to offer legal relief;where the exercise of public power violate legal procedures and result in serious damage to the procedural justice even if it does not directly infringe private rights,there should be statutory sanctions to declare the exercise of such public power invalid;where the public authorities have minor violations of legal procedures but of little or no infringement of private rights,relatively mild remedies such as corrections,rectification etc.may be taken or such minor violations may even be tolerated based on the weighing of procedural stability and other values.The fourth part mainly studies the technical problems in the process of the revision and the legislative interpretation of Criminal Procedure Law,and makes a summary and evaluation about the behavior of "experimental legislation" i.e.temporary flexible authorization since 2014.The rechtsfortbildung technique of Criminal Procedure Lawincludes revision technique,interpretation technique and temporary authorization of flexibility.Considering the importance of Criminal Procedure Law for the protection of human rights,the revision rights and the formulation rights should belong to the same institution,i.e.the National People's Congress(NPC)rather than the Standing Committee of NPC should be responsible for amending the Criminal Procedure Law.In the future amendment of the Criminal Procedure Law,it is advisable to adopt the method of "amendment + package modification".In terms of the specific modification technique of Criminal Procedure Law,the explanation of the amendment shall specify the amendment of single article.The legal instrument after the amendment shall be published again,and the number of the law shall remain unchanged.Temporary authorization of flexibility refers to the NPC and its Standing Committee grant authorization to the State Council,the Supreme People 's Court or the Supreme People' s Procuratorate in terms of specific matters to allow break of the methods that provided by some provisions of certain law in pilot areas,for the purpose of absorbing reasonable practical experience and promoting the reform.The temporary authorization of flexibility of the Supreme Judicial Authority does not overstep its judicial power over the legislative power.Instead,it strengthens not only the legitimacy control over the arbitrariness of judicial power,but also the legitimacy of judicial reform.Fast-track sentencing procedure for criminal cases is a new procedure which is full and systematic creation of summary procedure.Looking forward to the future,fast-track sentencing procedure should be separated from the summary procedure and build a clear boundary,complement relationship with summary procedure.Both the fast-track sentencing procedures and summary procedures must implement the requirement of leniency on admission of guilty or acceptance of punishment.In addition to compliance with the general interpretation rules,the interpretation of Criminal Procedure Law should meet some individual requirements to show its nature of controlling public power and protecting private rights.The interpretation of Criminal Procedure Law shall be governed by the general rules of interpretation,namely: interpretation shall be made by the entitled subject only when necessary;and the provisions of the law shall be respected when making interpretations.Criminal Procedure Law has the nature of controlling public power and protecting private rights,thus its interpretation must meet some individual requirements.Firstly,the method of extensive interpretation and reasonable analogical interpretation may be adopted in terms of the interpretation of protection of theprivate rights of parties and rights of defenders and law agents,but in principle the restrictive interpretation should be avoided.Secondly,the method of extensive interpretation or even analogical interpretation shall be avoided in terms of the interpretation of the authority of organs of the public security,the procuratorate and the court;and the method of extensive interpretation shall be adopted in terms of the interpretation of the obligations of the organs of the public security,the procuratorate and the court.Since 2014,the Standing Committee of the National People's Congress has made legislative interpretations of Criminal Procedure Law.The preliminary regression of legislative interpretation right and the concise interpreting texts are worthy of recognition,but there is problem of improper expansion of power.In terms of the subject of judicial interpretation of criminal proceedings,there are conflicts and adjustment between the trial interpretation and prosecution interpretation,the subject of joint interpretation is generalized and the level of the subject of interpretation is relatively low;the object and circumstances of judicial interpretation should be different from the legislative interpretation;the judicial interpretation should respect the law;the form of judicial interpretation should be standardized and unified;and the style of judicial interpretation should be as concise as possible.The fifth part mainly discusses the technical issues on how to reasonably express the legal language of Criminal Procedure Law.Specifically,it includes four aspects: Firstly,the provisions and words of Criminal Procedure Law should conform to the law of identity,the law of non-contradiction,the law of excluded middle and the law of sufficient reason of the formal logics,and the words,grammar or punctuations of the provisions should be of no errors,otherwise it is difficult for the law to achieve its value,and it may also affect the uniform application of the law and impair the beauty of the language of law.Secondly,how to solve the contradiction between clarity and ambiguity.In order to enhance the clarity of Criminal Procedure Law,short sentences should be used in terms of the articles,common vocabulary words shall be used as much as possible,and unnecessary vague words should be avoided.Appropriate enumeration is allowed,but miscellaneous provisions and the auxiliary words “etc” should be used with caution.The vagueness of Criminal Procedure Law can not be completely eliminated.The modification of Criminal Procedure Law makes some vagueness clear,but there are still improper vague loopholes,inappropriate use of vague words and inappropriate application of mutatis mutandis in some provisions.Thirdly,how to solve the contradiction between popularization and specialization.The language of CriminalProcedure Law should be based on the public language in order to meet the learning needs of ordinary people involved in litigation,but inevitably need to introduce foreign professional legal terms which can not be simply refused.The definition clause of Criminal Procedure Law will help to enhance the clarity of the law,but it should abide by the substantive rules and formal rules. |
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