Research On Contract Of Criminal Procedure

With the persistent development of judicial practice, the thought and spirit of the contract begin to penetrate into criminal procedure area from simple civil society, and the criminal procedure contract has became a system practice that really exists. Systems originated from the judicial practice, like plea bargaining, temporary delayed prosecution and victim-offender-mediation, are all judicial actions with contract spirit. As a new emerging judicial mode, the existence of criminal procedure contract phenomenon has great challenged traditional criminal procedure theory, and has struck the traditional criminal proceeding law idea to a differ degree. And this has arisen an argument between the academic community and judicial practice circles, which does not bear a result. Thus, how can criminal procedure contract come into being and has developed into a remarkable judicial trend in such a judicial field that emphasis on strictness rules? In fact, the emergence of criminal procedure contract is not accidental but has a solid and strong foundation.There are various forms of criminal procedure contract phenomenon in reality, and it takes on the characteristics of openness with the development of the rule of law. To fully understand the system and conduct systematic research from a macro point of view is the starting point and the end result of this thesis.The whole thesis is divided into four parts. First of all, it gives an academic definition of criminal procedure contract itself and analyzes the nature and characteristics of it, at the same time investigates the background of the system. From a genetic point of view, it begins in the trend of overlapping of public law and private law, accompanied by changes in criminal policy and the expansion of the discretion power of public prosecution.Secondly, this thesis gives a profound analysis on the legitimacy of criminal procedure contract system. In the field of law research, there are two criteria to measure the legitimacy of the existence of a system. One is whether the system has a reasonable theory support. The other is whether the system has a practical value. This thesis demonstrates the theoretical basis for criminal procedure contract system by describing the principle of procedure entity, the equilibrium theory of interests, and the theory of modestly restriction in criminal procedure. It reveals the practice value of this system from the perspective that the criminal procedure contract system helps to overcome the inherent disadvantages in traditional criminal procedure.Thirdly, it introduces the main forms of criminal procedure contract in the world. This chapter analyzes several typical criminal procedure contract systems by combining the basic principles of contract law, and fully demonstrates the implication of spirits of contract like"equal consultation","autonomy of will","mutually beneficial cooperation".etc.Finally, it probes into the structural elements of criminal procedure contract systems and the protection mechanism. This chapter concludes the structural elements of criminal procedure contract by the participants, the conditions of constitution and its entry into force .This thesis discusses the necessary resources and supporting measures to protect the function of criminal procedure contract system, in order to bring the positive role of criminal procedure contract into full play.