On Procedural Defense

Procedural defense is a new kind of modern defense. It does not refer to the substantial defense against the prosecution, nor does it refer to presenting evidence and reasons to prove the innocence of the accused, the pettiness of his crime and the need for a mitigated punishment or exemption from criminal responsibility. In fact, the procedural defense directly aims at the procedures of the special organs by pointing out and proving their procedural irregularities that may result in the exclusion of the prosecutive evidence, or even may result in the termination of the whole prosecution in the interests of the accused. As the criminal proceedings in modern countries become more and more strictly ruled by law, the object of procedural defense becomes more and more abroad and procedural defense becomes more and more important. To analyze its inevitability in theory and its utility in value will clearly indicate the rationality of this system in the countries ruled by law and the urgency as well as the importance to constitute this system in China. Like the other proceeding activities, procedural defense functions well only when a whole set of scientific mechanism is provided. The mechanism comprises the interior structural factor and the exterior supporting system. The impartial judges, the due process and the fair distribution of the burden of proof are the main interior factors. As for the exterior system, since procedural defense exists in all the procedural stages and involves all the special organs and all the parties, almost every specific criminal procedure system has an impact on procedural defense. Among these systems, the procedural evidence system, the right to awareness of the defending party and the system of safeguarding the defender's rights are the essential ones. Though we have not constituted the procedural defense system, the criminal procedure law and the related judicial interpretations do not ostracize it. Strengthening the research of procedural defense, establishing its function system accordingly and regulating the procedural defense activities that often come up in judicial practice is the only way before us to constitute our criminal procedure that is ruled of law.