Research On Victims' Right To Appeal In Prosecution Case

With the continued booming of international human rights movements, the protection of victims has become a common concern around the world. Since Criminal Procedure Law of China was modified in 1996, it has strengthened the protection the litigation rights of victims and established the position of the victim in litigation by law, which are great progresses in aspects of human rights protection and show respects for the concept of modern law. The revised Criminal Procedure Law in the protection of victims only gives victims'rights by provisions of the simple principle, but no more specific provisions. In the public prosecution proceedings victims are granted only the right to request the prosecution authority to appeal and only have the right to appeal in the supplementary civil action in criminal proceeding. Therefore, this paper on the victim's right to appeal in public prosecution, seeks to change the imbalanced situation when rights of victims are ignored in judicial practice, to ensure the victim's appropriate right of appeal, to ensure the harmony between legal and social effects.The paper is divided into five chapters.The first chapter outlines the victim's right of appeal in public prosecution. Firstly the victim in this paper, refers to the nature person in the prosecution case, who is subjected to criminal acts against his metal, body, property damage, or legal entity and other organizations which are subject to property damage, not including national victims. Secondly it demonstrates the development process of the victim status in litigation. In the feudal society, victims were not qualified to raise the lawsuit. Then the state and special prosecution organizations emerged, and victims'legal status and the right of action were limited. With the development of society, the status of the victim's lawsuit has also been further developed. One of the most significant changes in criminal proceeding is that the state has the power authorized by law to take punitive measures against crime, to express the negative attitude of the state against the crime. Thirdly, after the analysis of the right to appeal at present, four aspects are demonstrated: legislation condition of the right to appeal for victims, the current situations when to apply the prosecution authority for appeal, the involvement of victims in court and the situation analysis when the proceeding raised by prosecution authority is transformed to the proceeding raised by victims. Victims are authorized a series of rights by law, except for the right to appeal. Victims have to request the prosecution authority but actually the final decision shall be made by the prosecution authority, which is difficult for victims to exercise the right to appeal in practice. Meanwhile influenced by the some factors, the prosecution authority does not wholly represent the victims'interests so that the right to apply is also limited and constrained.Chapter II is concerned about theoretical basis of the right to appeal for victims in prosecution cases, which is demonstrated in the four aspects: the principle of the protection of the right to appeal, the principle of the participation in procedures, the principle of procedural justice and the principle of equality.Chapter III describes the necessity to give victims the right to appeal. The first part is mainly about the defects of the right to appeal by the prosecution authority. In practice, to give victims the right to appeal, can avoid neglect acts of the public prosecution in the exercise of the right of appeal, or the public prosecution disagreement with the victims, which fails to initiate the second trial proceeding. They relieve the contradiction between the prosecution and victims, make the remedy for the defects of appeal by the prosecution and defend the victims'rights. Secondly it proposes under the requirement of construction of Harmonious Society the right to appeal for victims is conducive to the realization of social fairness and justice, to maintaining social stability and to encouragement the people with enthusiasm to fight against crime. Thirdly according to the international legislation trend it requires of giving victims the right to appeal to strengthen protection of victims in criminal proceedings. Although victims as the dominant position of the parties have been protected by law, it has not given them an important proceeding right, right to appeal. Protection of the victims'right to appeal is required to achieve the purpose of criminal proceedings, including the protection of human rights, punishing crime, and ultimately the realization of procedural justice and the rule of law.Chapter IV demonstrates the feasibility to give a right of appeal in prosecution case. There has been many legislative precedents that victims have the right to appeal in other countries, including Germany, France, Russia and Sweden, which have provisions with different degrees on the right to appeal. The United Nations in 1985, "Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power" also provides that the victim has the right to appeal. Secondly it will not impact the structure of criminal proceedings if victims are given the right to appeal, and the feasibility to give victims right to appeal in practice is stated in the following parts. Thirdly the paper proposes that it is not contradictory between victims'right to appeal and the principle of non-adding penalty in appealing. Fourthly, it insists that to give victims the right of appeal will not reduce the efficiency of proceeding and not increase the litigations, and then specific measures that not only can guarantee the efficiency of the proceedings, but also take into account the interests of victims are proposed.In Chapter V specific institution design on a right of appeal is proposed. It shall constrain the scope of the subject and grounds of appeal, etc. The appellate review system shall be established. The principle that mainly by the prosecution authority, the victims appeal complementary shall be set up. Litigation prerequisite proceeding for victims shall be set up. Non-adding penalty in appealing system shall be supplemented. Victims as the vulnerable group should be provided with sufficient legal assistance so that the right of appeal can be ensured. It prevents victims'rights the abuse and the increase of litigations, and it will solve the social issues to the great degree, and guarantee judicial fairness and justice.