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Procedural Rectification Research On Criminal Procedure

Posted on:2018-01-11Degree:DoctorType:Dissertation
Country:ChinaCandidate:D LuFull Text:PDF
GTID:1316330536480662Subject:Science of Law
Abstract/Summary:PDF Full Text Request
The purpose of this paper is to assess what procedural impact a procedure flaw using procedural rectification as to fix the defects in the original procedure would have on the China's criminal procedure in practice.The procedure flaw includes criminal evidence flaw and Remanding Judgment caused criminal retrial.It is procedural impact that the conception of the flaw to instinct standard of judge trending to abuse of jurisdiction.The research finds the possibility that auto-operation and self-control of criminal procedure in view of procedural subtext.The research solves the dilemma that procedural sanction contrast with its actual effect and difficult to prove effective to some degree,such as illegal evidence exclusion rules.Research results suggest that the theory should help people develop a series of norm system of conforming formal rationality as to criminal procedure and protecting human rights as to procedural function.The system should provide an instinct procedural value for criminal procedure to operate on it's own particularly.In conclusion,it is the great significance to help people of our generation learn to procedural rule of law reasonably in the future of china's judicial reform.The paper is divided into six progressive sections.We propose that the core conception of Procedural Rectification of Criminal Procedure is clearly defined,including to clarify related theories,by research the fundamental principles.In order to analyze the connotation of rectification using in criminal procedure,a survey was conducted among practical jurisdiction,by cases and questionnaires.This research is focused phenomenon that procedural rectification is working on a kind of dynamic corrected criminal procedure.Take an example,only in this way a procedural flaw would remedy in criminal procedural function,will affect the whole original process of recovery.Findings suggest that the phenomenon should help people notice all kinds of abnormality in judicial practice of according with significant causes owing to lack of control.Furthermore,the main cause is the benefits balance of utilitarianism leading to procedural rectification stuck in the "unstable" station among techniques,policies,ideas and other external factors,et al.Otherwise,We should pursue the cause of criminal procedure itself among inner factors for the failures out of control.The results show about the research surveyed have focus on procedural control of criminal procedure on the grounds of the social control theory,which is that originating to Cybernetics.A point of view formal reason,the Procedural Rectification of Criminal Procedure is the characteristic of procedural control,belonging to the process control of the internal functionmechanism of criminal procedure.The point is that the procedural control as to rectification was one of procedural functions by nature,briefly referred to as function of procedural norms.It is meaningful to norm of criminal procedure law.However,the procedural control have inner defects of mechanism itself by contrast with criminal procedural legal norm apparently,which is not shaping procedural rules.Lacking mandatory sanctions,the procedural control have difficult to becoming the combination of legal norm.Findings suggestion that a legal system in general help the procedural rectification develop good operating normally of controlling criminal procedure and establishing integrated process functions.They should provide a balanced control-mechanism between procedural sanction for external process function and procedural control for internal process function,merging into functional legal norm system concerned procedural value of criminal procedure.Ultimately,it is the obligations of author to introspect the significance of the research itself on the constitution deeply theoretically.In conclusion,the criminal procedural operation and control have great significance in safeguarding human rights based on formal reason,which is not isolating with mechanism of functional legal norm system.It is necessary for us to rethink the construction of legal norms further.Of course,any study has own limitations.Thus,we should have demonstrated strictly the theoretical innovation and the possible limitations rationality with careful attitude scientifically.
Keywords/Search Tags:Criminal Procedure, Procedural Rectification, Formal Rationality, Procedural Control, Discretion
PDF Full Text Request
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