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Research On Protection Of Human Rights On The Criminal Suspect And Defendant

Posted on:2008-07-24Degree:MasterType:Thesis
Country:ChinaCandidate:Y R ZhouFull Text:PDF
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Since modern times, respecting human rights has already been established as an important international principle, its related legislation has been promulgated in all countries of the world, which is also included in amendments to the Chinese Constitution. In all human rights legislation, it is a focal point to ensure human rights in judicial administration. The Criminal Procedure Law of our country has stipulated exhaustive regulation on the procedural rights of the suspect and the defendant in line with the humanistic principle. However, compared with international standards, there are still some gaps in breadth and depth due to the specific historical background and development status of China. This thesis intends to put forward some proposals to improve procedural rights of criminal suspects and defendants. This thesis consists of four parts.Part I: Human rights foundation of suspect and defendant procedural rights.It is a basic principle of the China law that human rights shall be protected. Human rights mean all people can have the equal enjoyment of human rights, based on the natural capacity of people. Human rights is of great significance to China's law, which is the basis and sources of our legal right, and has become the start point, core content and mission of all our laws. However, there are still some difficulties in achieving full human rights, which is determined by the fundamental realities of China at the primary stage of socialism. Among numerous means to protect human rights, the legal protection of human rights is an important one.The prior consideration of the interests of suspects and defendants is the embodiment of human rights. The interests are source and content of the right, the right is that the laws of interests are stated, the right forms the core of human rights again. The protection of human rights begins with giving priority to the interests of the criminal suspects and accused. On one hand, interest priority of suspect and defendant, is the prerequisite of tripartite weighing apparatus of interests between the interests of the injured party, the suspect, the defendant and society. On the other hand, interest's priority of suspect and defendant is the foundation of structuring the human rights security mechanism of criminal suit. Whether the interests of the suspect or defendant have received fully respect and guarantee best reflects a society's level of civilization and progress. To safeguard criminal suspects or defendants' rights has become an important aspect of the protection of human rights in criminal proceedings.Part II: International human rights standards of the suspect and defendant in criminal procedure.According to International Human Right Act, human rights of the suspect or defendant are composed of presumptive, defensive and relive ones. The presumptive procedural human right refers to the innocence presumption of the assumed criminal suspects or defendants. International Human Rights Act stipulates the innocence presumption principle, the access to independent, public and fair trial, the right against unreasonable delay, the Auforefois Conzect principle. The defensive right of action of criminal suspects or accused refers to the right to be against and offset accusation. For defensive action, International Human Rights Act stipulates the access to procedural information, right to defend and the right against forced self confession and free translation help. Relive human Rights refer to criminal suspects or the accused have right to demand another specialized agencies to review and make changes against detrimental judiciary. Such rights include the right to be free of undue custody and, to demand judges to review and change, abolish compulsory measures, the bail right, criminal compensation right and retrial right. It is also stipulated in International Human Rights Act.Part III: Regulations to procedural rights of suspect or defendant in China. Take the presumptive rights of criminal suspects or accused first. For innocence presumption, refer to Article 12 of China's Criminal Procedure Law. For access to independent, open and fair trial, refer to Article 5, Article 11, and Article 152 of China's Criminal Procedure Law for corresponding stipulations. For rights against unreasonable delay, China's Criminal Procedure Law explicitly stipulates the exercise period of warrants, detention, bail, surveillance, arrest, investigation, prosecution and the duration of the first and the second trial. For Auforefois Conzect Principle, it is clearly stipulated in Article 197 of China's Criminal Procedure Law.Second, the defensive procedural rights of criminal suspects and defendants. To guarantee the access to procedural information, China's Criminal Procedure Law stipulates that the public security bureau must produce a warrant in providing arrest. Meanwhile his family and work agencies must be informed correspondingly. For defense, Article 33, Article 32 and Article 36 of China's Criminal Procedure Law stipulate that the criminal suspects and the accused have the right to defend themselves and have access to counseling. In the right against forced self-guilt, the two supreme judicial interpretations stipulate explicitly that the evidence obtained by illegal means shall not be the basis of a conviction. For access to free translation r, see Article 9 of China's Criminal Procedure Law for reference. Finally, the relive rights of criminal suspects and the accused in China. For undue detention and the right to ask a judge to review, check and abolish forced measures and bail, Chinese law provides the application conditions, duration of coercive measures. Countermeasures to abolish improper application or excess of the statutory period of time are also stipulated. For criminal compensation, see Article 15, Article 16 of China Compensation Law for reference.Part IV: Disparity and perfection of procedural rights of suspect and defendant in China.There is a gap between China and International laws in presumptive rights, which needs to be improved. In China laws, innocence presumption is not tacitly defined, which leaves much rift to the internationally accepted innocence presumption principle, leaving no rules to follow , which should be established as soon as possible in China. We should grant the suspect and defendant reticent right and improve illegal evidence exclusion rules, etc.For the right to independent, open and fair trial, pursuit of a fair trial should be taken as a major goal of the Criminal Procedure Law, with judicial independence and openness as prerequisite. Judicial independence includes the independence of the judiciary, the independence of the courts and the independence of judges. As the relationship between the judicial and other agencies is not straightened out yet, the independence of the judiciary is not easy to be realized at present; There are no limits on the number and times of remanding and retrial, so it is difficult to achieve independence of the courts; And there is no provisions on the independence of judges at all. For the openness of trial, only the openness of the first trial and court trial have been emphasized, which is not comprehensive enough. Several measures are proposed for the establishment of independent, open and fair trials.For the right against unreasonable delay, although the deadline for the investigation, prosecution and the duration of the first trial and second trial has been stipulated clearly, but in practice, these provisions have not been effectively carried out. Legal consequences of non-compliance should be clearly stipulated, while the supervision of the judiciary should be strengthened.For Auforefois Conzect principle, in China, many institutions and any case can demand retrial if it is in line with our laws. Meanwhile there is no stipulation on the time and frequency of retrial, which needs to be strictly limited and be confronted to the interests of the accused.The defensive procedural rights of criminal suspects and defendants also need to be improved. For access to procedural information, the China Criminal Procedure Law does not specify the content, target, time and approach, and the legal consequences of noncompliance are not clearly defined, so some solutions to these issues are proposed.For defense right, the dominating position of the defenders in investigation and prosecution is not established, while the rights of defenders need to be improved. It is difficult for defender to meet his lawyer, collect evidence and examine procedural files. Some reforming proposals are put forward in light of these shortcomings.Relive procedural rights of the criminal suspects and defendants need to be improved. In requesting a bail, requesting the judge to review and change or abolish compulsory measures to ensure their rights are not unnecessarily detained, China's Criminal Procedure Law grants arrest right and detention right to procuratorial organizations and public security bureau respectively, lacking a neutral body to judge. It is proposed to abolish these privileges, and transfer them to the judge. For criminal compensation rights, though its scope is wider than the Two Rights Conventions, but mental damages compensation is not provided, which is unreasonable and needs to be stipulated.
Keywords/Search Tags:Protection
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