The Legitimacy Research On Alternation Procedure In Criminal Implementation

The alternation in criminal enforcement is an important part in criminal execution system. It is located in the last part of criminal proceedings, which is directly related to the implementation the penalty and realization of the ultimate purpose of criminal proceedings. It is not only the end of the criminal proceedings, but also the starting point when social relations and social order can be repair and reconstruction.In recent years, there had been an increasing number of unfair and even illegal phenomenons in the practice of alternation in criminal enforcement operations. The alternation degenerates to the money trading between the executive subject and the object of the implementation. In response to these problems, a series of reflection and discussion activities had been launched. However, in the traditional criminal law theory, the alternation of implementation often be studied in the scope of criminal law system, ignoring the problem of procedure. The emphasis on substantial law and the slight on procedure, will inevitably lead to chaos in the alternation of criminal enforcement. It leaves chances to the fraud, favoritism and other behaviors. Thus, the research on proper procedures of alternations is the key of eliminating injustices in criminal enforcement.The alternation procedure in criminal enforcement is discussed from the perspective of the justice procedure. First of all, using, the basic theory of alternation procedure in criminal enforcement is studied by comparative analysis, defines the meaning of alternation in criminal enforcement procedure and the object of study. Furthermore, with the theory of procedural justice, the alternation procedure in criminal enforcement is characterized. Then, the alternation procedure in criminal enforcement is orientated by value analysis, to provide guidelines of value for the improvement of alternation procedure in criminal. Second, alternations of the criminal implementation of foreign countries are introduced by comparative analysis, the typical civil law and common law countries respectively as an example. Through the study of foreign systems, analyzing the characteristics of the system is analyzed, their legislative experience in the legal system is reviewed and a good foundation for transplantation is laid. The third, the flaws and defects of our current alternation procedure of criminal implementation are analyzed from the view of legislation, trial procedures, monitoring procedures and system security respectively. Finally, with the above analysis, recommendations on the construction of alternation procedure in criminal implementation are proposed. Through the improvement of the procedure, with reasonable distribution of the right to start, the right to participation, the right to dissent and the right to supervision, making balances between each subject within the orbit of procedure. By refining the orders and the steps of alternation in implementation, clearing time requirements and space requirements, and the reasonable allocation of the burden of proof, rational and fair procedure to be made. By hear in public court, the open and transparent procedure to be made. Through the security system established after the alternation, the joint between procedures to be realized. Therefore, the procedure will achieve a perfect ending.