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A Research On The Fundamental Issues In Private Criminal Prosecution Proceedings

Posted on:2005-02-23Degree:MasterType:Thesis
Country:ChinaCandidate:L JiangFull Text:PDF
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The power to initiate a criminal prosecution is the power legally entrusted with specific state organs and individuals to start a criminal prosecution before a court with competent jurisdiction for the purpose of exposing and proving criminal facts for finally imposing punishment on the convicted accused through the court trial process. Ultimately, criminal prosecution itself is not a final object whose significance nevertheless mainly lies on the initiation of the trial process, empowering the court to try the case for quelling crimes.In the history of criminal proceedings the power to initiate a criminal prosecution used to be wholly exercised by the individuals and for the part of state, if there is no private complaint, the state will not intervene for the prosecution or trial of the criminals. With the developments of society, the state gradually realizes the fact the crime is not only a violation of the rights of individuals but an infringement of public interest on the whole. Guided by this conception the state tends to monopolize the power to initiate a criminal prosecution, which in the end leads to extreme. In a modern society, the state intends to set up public and private prosecution system taking into consideration of the factors such as the need of the maintenance of the ruling order, reducing litigation cost, allocating properly the judicial resources and respect to the right of individuals to gain access to justice. As a consequence, the system of public and private prosecution has been formulated.From the world-wide angle, it appears that private prosecution take a fairly small proportion in comparison with the public prosecution. Most countries follows theprinciple that public prosecution dominates with private prosecution as a supplementary instrument. In some countries, prosecution power rest only with the state which monopolizes the prosecuting power.Present Chinese Criminal Procedure Law classifies cases of private prosecution into two categories: one is case to be complained and started by the victim and the other is the less serious case for which the victim may be able to present evidence to prove. Furthermore, the scope of privately 1 prosecuted cases has is widened against the general world tendency in the criminal prosecution system. A third category of privately prosecuted case is added to the present system. This thesis is to mainly discuss about the issues with regard to the origin of the prosecuting power, the comparative analysis of different systems in various countries. In addition, the thesis attempts to explore into the current problems as discerned in the legislation and judicial process with regard to private prosecution and to offer some recommendations and advice for the consummation of the prosecution system in China.
Keywords/Search Tags:Private Prosecution, Public Prosecution, Private Prosecution System, Private Prosecution Procedure
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