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Relief Of Pre-trial Procedural Decisions In Criminal Proceedings

Posted on:2012-10-02Degree:MasterType:Thesis
Country:ChinaCandidate:T HuFull Text:PDF
GTID:2166330338460094Subject:Criminal Procedure Law
Abstract/Summary:PDF Full Text Request
Pre-trial Criminal Procedure for decisions (such as the decision of the investigation, decisions and measures of decision not to prosecute, etc.) related to the filing, investigation, prosecution of all aspects of these decisions are usually made unilaterally by the state power, often affect the person's personal liberty or property rights and other basic rights. "No relief no rights", therefore, the criminal pretrial procedural decisions relief system on the protection of the procedural rights of the parties, which restricts public power and criminal pretrial procedures have a reasonable construction of a crucial impact. Investigation of the existing "Code of Criminal Procedure" in the relevant provisions of the difficult to find, review, review, appeals and direct the parties to the people's court is a procedural decision on the pre-trial remedies taken by the major. However, due to congenital defects in the legislative practice of the criminal justice pre-trial procedural decisions relief system operation, can not play the action effect. Meanwhile, the lack of procedural law as well as academic interest in the lack of information, but also to some extent hindered the criminal trial procedural decisions before the reform and improve the relief system. Therefore, the criminal pretrial procedure determines the relief system to conduct a comprehensive study has important theoretical and practical significance.This dissertation consists of parts besides an introduction and a conclusion.The first part briefly describes the pre-trial of the criminal procedural decisions constitute the type of relief system. China's current criminal pretrial procedural types of decisions, including jurisdiction, criminal proceedings start or end, to limit or deprive suspects of personal freedom and property rights, to avoid a decision. Criminal Procedure before the system determines the form of relief system, mainly in six aspects, one of relief include not filing a case, dismissed the application for withdrawal, taken off the case, more than the statutory period of enforcement, not to approve the arrest and the decision not to prosecute; its Second, the distribution of relief to the right of the victim, suspect and public security organs can be of the appropriate pre-trial procedural challenge the decision; Third, the remedies include the reconsideration review, the complainant and to the people's court; Fourth, start the process of relief feature was simple; The fifth review of the main relief is not uniform, the original decision-making organ, the original decision to higher authorities and the authorities can be a relief to the people's court review of the main body; the sixth, relief was documented review process, the secret of the features.The second part of our pre-trial procedural decisions reflect the current situation of the relief system. Pre-trial procedures of the existing relief system determines the existence of five major deficiencies. First, narrow the scope of relief. Pre-trial Criminal Procedure determines the scope and complexity and diversity of relief in pre-trial procedural decisions does not fit in the right of the parties can not meet demand. Second, the uneven distribution of the right to relief. Although per capita victims and suspects can apply for pre-trial procedural decisions relief, but in between them and the unequal distribution of power is the law of the balance was tilted to the victims and the relative neglect of protection of the rights of criminal suspects. Third, the lack of effective remedies. Review of administrative reconsideration of the convergence of relief, the complainant in a manner non-existent, the people's court directly under the existing system can not meet the relief needs of victims rights. Fourth, the benefits start the program simple. Lack of relief of the main existing legal ways, which means, in what period of time for relief, and relief of the main relief is in the application shall state the reasons and to provide adequate relief and other relief to start the procedure the evidence detailed requirements. Fifth, the review of the main neutral relief is insufficient. Review of the existing relief not completely out of the main organs of the original decision, relief can not guarantee the independence of the review, neutrality. Sixth, the lack of relief to review the rules of procedure. Remedy the lack of available means of relief review, the review period, review the scope of the clearly defined, tends to result in a written review of relief, the secret of, program participation can not reflect the basic elements of procedural fairnessThe third section presents a correction procedure of pre-trial relief system determines the specific measures. Pre-trial Criminal Procedure for the sex determination system, the lack of relief, we should from the six aspects of the procedural decision of pre-trial relief system reform. First, the reform of the scope of relief. Should be appropriate to expand the scope of relief, the parties may affect the interests of both pre-trial proceedings into the relief system of the decision, including jurisdiction, filing and not filing, taken off the case, refused to apply for the withdrawal, mandatory measures and search, seizure, freezing of the mandatory investigation measures and the decision not to prosecute. Second, the right to adjust the distribution of relief. Should be clear right to relief for the procedural rights of the main procedural decisions by the pre-trial court proceedings who is directly affected me, that is, suspects and victims, and should the right balance between relief to reflect the principle of equality. Third, the remedies of the reform. Relief should be located in the administrative relief from the current program of relief to the proceedings of the change in shape, integrate the current fragmented and chaotic way of relief, forming a system of criminal trial procedural decisions before the relief system. Fourth, the benefits start a program of reform. Relief program should be clear to launch rights for the proceedings was the subject of pretrial procedural decisions directly affect themselves and their legal representatives who participated in the proceedings; from the litigation perspective of efficiency and protection of the rights, remedies should be provided time in right of receiving the written decision within seven days; launched either in the form of relief can also be written oral, and relief to the original decision to apply either directly to the relief agencies can also review the proposed authority; relief of the main application for relief, only need to explain procedural decisions the wrong reasons can be, without the burden of proof. Fifth, the relative neutrality of the main benefits of the review. In our existing judicial system, public security authorities to the criminal pretrial procedural decisions for relief should be reviewed by the People's Procuratorate; Procuratorate made of pre-trial criminal procedural decisions should be remedied by the review on a Procuratorate. Sixth, the reform of relief review of the decision process. Approach should be taken to remedy the review proceedings of the relative form of relief to the applicant and shall be carried out under the applicant's participation, allowing both parties to provide evidence; relief to review the content should be both a review of the decision per se but also on the executive level of illegal review; should provide relief to the review period, the review bodies to determine the obligations of relief to protect the victim and the legitimate rights of criminal suspects.
Keywords/Search Tags:Pretrial procedures, Procedural decisions, Relief, Perfect
PDF Full Text Request
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