On The Legislation Defects And Perfections Of The No Trail Without Complaint

The no trail without complaint is an important concept in Criminal Law, and as a basic type of crime, it is more comprehensive in many countries. But, our country's criminal law only stipulates five kinds of the no trail without complaint (insult crime, defamation crime, interference in freedom of marriage crimes by violence, maltreatment crime and invade crime), and the correlation theories lack the systematic characteristics, thus causing its penalty function to be restricted. This article analyzes the value of the no trail without complaint and the present legislative situation, through the Chinese and foreign comparison method, prompting the Legislative proposals.The full text is divided four chapters, and the abstract is as follows:The first chapter is mainly on the outline of the no trail without complaint. Section one introduces the history of the development about the no trail without complaint. In foreign countries, the no trail without complaint has a long history, dating back to the ancient Rome. After entering Capitalist society, the Anglo-American Legal System and the Continental Law Legal System were formed. Because they adopt the different lawsuit patterns, the no trail without complaint has different statuses in two big legal systems. The no trail without complaint began in the Tang Dynasty basically in our country, the Song Dynasty 's legal rule as same as Tang Dynasty. The Ming Dynasty's legal rules were wider. But generally speaking, in our country ancient times the scopes of the no trail without complaint were restricted between relative's slight crime generally. Our country's present criminal law has stipulated five kinds of the no trail without complaint: insult crime, defamation crime, interference in freedom of marriage crimes by violence, maltreatment crime and invade crime. The second section limits some related concepts of the no trail without complaint, in order to avoid the confusion.The second chapter is about the legislative value of the no trail without complaint. Researching the criminal law value will enable the criminal law theory to have the permanency. Therefore, it is necessary to analyze the criminal value of the no trail without complaint, which can seek theory fulcrum for the no trail without complaint. The first section mainly elaborates that how the no trail without complaint balances conflicts between the freedom and the order. The freedom and the order are humanity's essential attributes. But, the freedom emphasizes personality, while order emphasizes sociality. The freedom and the order are the core value goals which the law pursues, and thus they are also the value goals of the no trail without complaint, which the system pursues. In modern society, freedom and order mutual influence. First, where there is no order, there is no freedom. Second, the order cannot leave the freedom."A reasonable and well-moving government by law society must form a kind of tensity between the freedom and the order, thus enabling the social life both to have stable order, and enough freedom."The no trail without complaint system is on the basis of coordination of balance between freedom and order, and take a priority value. However, the no trail without complaint system delegates the right punishment for the individual citizen, and in the exceptional circumstances, legislators choose the order. This kind of choice's reason lies in: Must hold the careful manner to penalty's utilization, not all penalty questions can be solved. The criminal law must control the social order as few as possible, and should give as much freedom as possible to citizen individual. This is also the requirement of the criminal law modest and restrained spirit. The second section mainly elaborates how the no trail without complaint coordinates the contradictions between fair and efficiency. Fair and efficiency are the value goal which the law pursues. They have the common material base, and fair is not the pure energetic idea thing, which sometimes closely connects with the social resource optimized disposition. And the application of penalties needs a certain cost, and the criminal policies and the operation of the system require a lot of manpower and material resources. The maintenance of criminal facilities can not do without a certain amount of material conditions. At present, the lack of judicial resources is a serious problem for many countries, and of course, there is no exception China.The third chapter is mainly on the question of the no trail without complaint which exists in the legislation. This chapter mainly elaborates the insufficiency of the no trail without complaint in the legislation. The first section discusses the scope of the no trail without complaint is too narrow. Compared with foreign countries, our country's criminal law only stipulates five kinds of the no trail without complaint, and these crimes are not fully applicable to the no trail without complaint, which limits the value of the no trail without complaint. The second section discusses the defects of the surrendered system in the no trail without complaint. Ancient Chinese law had the regulation of the similar surrendered system, and foreign criminal legislation in the no trail without complaint systems had surrendered system, but at present China's criminal law has not clearly defined the issue of surrendered system in the no trail without complaint. The third section elaborates the narrow relief way of the no trail without complaint. Because the no trail without complaint picks the private prosecution, therefore the victim is unable to obtain the same legal status as the Appeal Institution, and often is in the weak trend in the lawsuit. In our country criminal law, the legal rule to guard the victim lawsuit right's protection is not very perfect, so it is unable to guarantee that the victim obtains the relief promptly. The forth section discusses the pro-prescription system defect in the no trail without complaint. China's criminal law is more comprehensive and has more detailed requirements on the time of the indictment system. But it does not make a clear definition of the time system on the no trail without complaint, so in judicial practice, the judiciary often have no rule to follow when handling the no trail without complaint–the time problems. The fifth section elaborated the flaw of the potency system in the no trail without complaint. The potency system is also under the name telling indivisibility. Some countries have legal rules that when a crime is committed by multi-people and one person or several people sued, the potency system reaches other accomplice. In our country criminal law and law of criminal procedure, we don't make the stipulation to the no trail without complaint.The fourth chapter is about the legislative proposals on the no trail without complaint. Mainly based on the above discussion, here are five proposals on the no trail without complaint legislation improvement: First, expand the scope of the no trail without complaint properly. Its reason is mainly the need of the criminal law victim theory development; the need of Criminal law modest and restrained spirit; the need of social reality. Here the author has delimited the scope of the no trail without complain. Second, establish the surrendered system of the no trail without complain. Make specific requirements on surrendered time, truthful facts. Third, expand the relief channels of the no trail without complain. The concrete method is: establish the spirit damage compensate system of the no trail without complain; Perfect judicial aid system; Strengthens the attorney troop construction. Fourth, establish the effectiveness appeal system of the no trail without complain. The author suggests the prosecution effectiveness stipulation should be 6 months, from the date the perpetrator knows or should know it and the effectiveness stipulation of investigating of the no trail without complain should be 5 years, from the date of the crime. Fifth, set up the appeal potency system of the no trail without complaint.