A Study In Transition From Subjectivity To Inter-subjectivity In Criminal Litigation Procedure

From the perspective of the development of modern social history,theory is the forerunner of social development and reform.In the process of the modern society moving towards modern society and post-modern society,theory,especially subjectivity philosophy,provided theoretical support for the arrival of the new era and played a vital role.The modern rule of law is based on the subjective philosophy.Dispute resolution that is closely related to the criminal procedure as an important part of the modern rule of law is an important part of the modern rule of law society.The subjective philosophy is based on the dual division of the cognitive subject and the cognitive object.It is a one-dimensional understanding model from subject to object.It overemphasizes competition,monologue,inequality,fault,confrontation,past thinking,and emphasizes formal rationality and restoration of existing order.Both the adversary model and the authoritarian model are all carried out in the confrontation of the main body of the procedure,thus inadvertently putting the criminal procedure into trouble.With the development of the subjectivity philosophy to the intersubjective philosophy,the criminal procedure has also undergone a certain transformation,which increasingly reflects the influence of intersubjective philosophy.The subject of criminal procedure is a practical subject of communication with others'discourse.The subject is no longer the cognitive relationship under the past-type confrontation thinking of the subject and the guest,but the self-talking communication between the self in the discourse communication.Relationship is also the process by which the composite subject gains consensus in understanding the object.The western criminal procedure is such a process from subjectivity to intersubjectivity,that is,to establish subjectivity,and then overcome some of the drawbacks of subjectivity,and re-establish subjectivity to intersubjectivity.With the formation of global integration and the community of human destiny,there is a need for transformation in China's criminal procedure.The development track of criminal procedure in China can be vaguely glimpsed from several law amendments.The track is from the subjectivity to the development logic of intersubjectivity.However,due to the fact that substantive rationality is more important than formal rationality,and that "nationalism" is higher than"individualism" and "entity justice" is more important than "traditional justice",the subjectivity of criminal procedure is "publicized" on one side.On the other hand,it is trapped in the "formal" image of "half-face makeup".Meanwhile,"legal formalism" is more important than "communicative rationality",and the intersection of traditional society and modern society is weak in rule consciousness and subjective consciousness.In the intersection of society and post-modern society,the subjective expansion and uncertainty collide.There is dialogue and consultation between the criminal litigation subjects.However,dialogue and negotiation cooperation in the context of unsmooth communication has been alienation into "transaction" or"cooperation".Therefore,the subjectivity of criminal procedure in China is far from being achieved with not publicized,and there are signs of intersubjectivity but not extended.At present,China's criminal litigation field is undergoing a "trial-centered" criminal litigation system reform.The relationship between the various criminal procedure subjects must be adjusted in a timely manner.We must achieve the dual mission of subjective remodeling of criminal procedure and subjectivity to intersubjectivity in a timely manner.Therefore,under the guidance of intersubjectivity theory,the subject of criminal procedure is the cognitive subject that is the premise of the existence of its subject in the relationship,the interaction between the main body of the procedure as the litigation process is presented,and the interests between the subjects presenting the trend of growth and balance,which is the epistemological basis of subjectivity to intersubjectivity;intersubjective dialogue characterized by equality,democracy,comprehensiveness and authenticity in criminal procedure is the methodological basis of subjectivity to intersubjectivity;criminal litigation activities reflect the relationship between the main bodies of the program,which is the ontological basis of subjectivity to intersubjectivity.After the above theoretical basis generated,we can reconstruct the discourse system among the subjects of criminal litigation in China.This discourse system is to dispel the monopoly of control-oriented discourse monopoly and the dominant discourse presupposition under moral evaluation,and to go to the equal-conceived discourse mode with respect as the core;form the reinforcement-enhancing mechanism of subjective right under the principle of "final settlement of the judiciary" and form the strong power to the weak and then the strong circular guidance mechanism;the transformation in "speaking and listening" between the subjects role and the mutual right of "rights and power" promote the symbiosis of discourse between subjects.The support of the theoretical foundation and the architecture of the discourse system require an action system that is based on.In the context of "trial-centered"background,the inter-subject criminal procedure resists the "centrism" of various subjects,and walks on the path of "decentralization" of the subject,which is formed by judges,controlled by multiple subjects,collaborative participation,equal dialogue,multi-integration,and tolerance of dynamic inter-subject criminal proceedings.The inter-subjective criminal procedure is shown by the coupling relationship of "double cones".Among them,the power-based subjects form a synergistic relationship based on the constraints.The dialogue between the prosecution and the defense form a dialogue-based relationship based on equality.The interaction relationship based on the protection of rights,the interaction between the victim and its subject is based on the trade-off.