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On The Realization Of The Procedural Fairness In The Criminal Procedure Of Our Country

Posted on:2008-02-29Degree:MasterType:Thesis
Country:ChinaCandidate:X LiFull Text:PDF
GTID:2166360242459900Subject:Law
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As one of three judicial procedures, law of Criminal Procedure is affecting the degree of our national progress, civilization, democracy and rule by law to decide whether it is fairness, perfect and science. As one of the important content and signs by the modern government, the lawsuit of legal system is the important safeguard which our country rules a nation legally. Legislative course in our country also proved that, whether the lawsuit legal system has done exist or consummated, directly reflected and manifested our country's progress, the civilized, the democracy and the government by law degree.Procedural fairness rooted in Plato's view, which is a Greece famous thinker. The natural law in Si Duoge has further developed the just view, and become the rationale which the nature discusses justly. This kind of nature just theory Afterwards passed to England and became a basic principle in the England legal system. In the English common law procedure fair idea obtains the inheritance and the development in the US. It is usually called"the right procedure"in the US. However, procedural fairness is by no means the patent of British and American legal system, the mainland legal system similarly regards it. In brief, along with the law theory's unceasingly rich and development, procedural fairness already became a basic criterion to safeguard human rights in most countries and the important contents in many international legal document.Procedural fairness, as one of the fundamental values of human legal systems, is refers to the value goal in the procedure operating process of the procedure design and the judicatory realization. It contains two meanings: One is the procedural essence fair, namely the procedural law standard is fair. It has manifested the just spirit. Two is the procedural form fair, namely the procedural operation process is fair.Procedural fairness mainly displays which is the important safeguard in the procedure realizes. It has the entity fair value and manifests a country's legal fair. Therefore, the realization of judicial fairness, not only depends on the realization of entity fairness, but also is decided in the realization of procedural fairness.A fair procedure may rely on its own superior quality to define in the procedure scope on the judicature behavior. It simultaneously violates the behavior to it which the stipulation of the procedural law makes. Through it makes it to undertake the corresponding legal liability to carry on the sanction, it finally plays prevents the jurisdiction abusiveness with the judicial corrupt role. Procedural fairness can cause the result, but also may increase the lawsuit the inspirational force, also reduce the psychological barrier which the main body answered a charge. It calmly involved the lawsuit and defended own legitimate rights with the decided procedure method.The criminal procedural unfair mainly manifests that the procedural neutrality has been thoroughly unable to obtain, it induced the bilateral inherent strength not to be balanced. It is inequality in the understanding degree and the evidence collection of the case. It is inequality that it produces the legal consequence in the right using. In the criminal prosecution many decisions that the judicial organ makes have affected the victim to know the case certain degree right.The court case instruction and examination system violate the trial public principle. It is extremely few about the public stipulation in the legislation. The execution work lacks the transparency. Victim's participation right has not been able to obtain. The universal phenomenon that witness does not appear in court enables the litigant to be rich in the participation questioning. According to the Law of Criminal Procedure, the court and the law-office may start the retrial procedure as the authority and aren't any limit. This causes a kind of unstable and the unstable condition in the litigant to anticipate the lawsuit result. It has affected the procedure stability seriously.Procedural fairness can be able to realize in the criminal prosecution. First, it must establish the idea about procedural fairness. From the system to the rule, the criminal prosecution legislation is perfected, procedural fairness is realized, the law shape principle is implemented. Next, it must revises the comprehensive trying principle of the second trial courts, it revises the stipulation about the change prosecution question, it cancels the start power in the retrial procedure. Then, it strengthens the ability of the crime suspect and the accused person. It entrusts with the silences power of the crime suspect and the accused person. It consummates the trial lawyer's lawsuit right, and expands the related content of the criminal legal help system. It reforms the present judicial system, safeguards the fairness of the criminal judicial process, realizes the judicial independence, safeguards the criminal activity procedure, consummates to the surveillance mechanism of the judicature, guarantees the fairness of the criminal procedure, improves judicature personnel's quality and the public security, improves the judicature personnel's moral quality and service quality.The procedure is the striking symbol in the modern government by law. Without the government by law, it still has the entity question. But without the procedure, it does not have the government by law to be possible actually to say. Certainly, in the today to initiate and attempt the government by law, it that raises the value of procedural fairness is by no means looks but not see by the pragmatism manner to the government by law pursue entity fair value. Because we still did not arrive to procedural fairness value understanding, we still lacked in procedural fairness idea in the legislation and the judicature. As the Law of Criminal Procedure in our country procedural laws, it has this problem similarly. Therefore, It is extremely essential that procedural fairness idea is introduced in the criminal prosecution.
Keywords/Search Tags:Realization
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