A Research On The Criminal Procedural Defense

With the constant progress of the human civilization, people have realized that human rights don't belong to the western countries exclusively day by day. It is a kind of general values of the human society.The laws of the countries all over the world pay attention to the protection to human rights gradually. Our country is no exception, the guarantee of human rights becomes the important value goal that the law of our country pursues day by day too.The criminal procedural defense comes into being along with the development of human rights. As a typical defense form and an important component of the criminal defense system, the criminal procedural defense serves as the most direct compensatory measure for the crime suspect and the accused when their rights are impinged by illegal procedures. Different form the entitative defense that is against prosecution and provides evidence for innocence, or the pettiness of his or he crime, or the need for a mitigated punishment, or exemption from criminal responsibility, the procedural defense tries to prove criminal law organs' illegal procedures in order to remove unfavorable evidence for the accused or have those procedures declared null or the whole prosecution terminated.In a criminal proceeding, procedural defence not only owns particular values on correction of procedural illegal act committed by scout organizations, prosecutorial organizations and adjudicator organizations and their personnel, restriction on abuse of national power and safeguarding legal rights of criminal suspects and defenders, but also have great significance on improving the criminal system of advocacy, maintaining dignity of suitcase procedure and promoting judicial justice and realizing the internationalization of our country's criminal judicial system. But as an"aggressive"defence, developing procedural defence needs excellent legislation system environment and fluent operating procedure. However there are many insufficiencies in current legal system of our country, as that not sound criminal procedure regulations, short of judicial review system and procedural adjudication system, inherent limits on system of the court of second instance being the final instance, defect of attestation rules, not perfect procedural sanction system etc. All that cause it is very hard to carry out procedural defence system in our country. So all-oriented revolution on current criminal suitcase system should be pursued in order to operate really and play its proper role.This text adopts the comparison research approach to analyze the reasons for difficulties in criminal procedural defense in China,on the basis of other relevant research, around the basic value of criminal procedural defence, through drawing lessons from the criminal procedural defend system of UK-US legal system and Mainland legal system. In addition, considering China's own national conditions, the article attempts to conduct a research on Chinese criminal procedural defense system from aspects of people's legal perceptions, its own construct, and establishment or improvement of some auxiliary systems.This text is divided into four parts in the structure, About 40,000 words .The first part discusses some foundamental theories of criminal procedural defense.At first, it explaines the concept of criminal procedural defense and analyzes the properties of criminal procedural defense from it.Secondly, analyzes the value of criminal procedural defense, and points out that the theory meaning and realistic value lie in:(1)It helps to maintain procedure dignity, reflect the independent value of the procedure.(2) It can offer more effective route for the ensuring of human rights,and the defendant's legitimate rights can be safeguarded effectively in time.(3) It helps to standardize the behavior of the judicial members, prevent and reduce the emergence of the procedural illegal phenomenon, and prevents the false and wrong cases.(4) It helps to promote the development of our country's modern criminal judicial system. Finally, it discusses the theoretical foundation from procedure justice theory and procedural sanction theory.The second part introduces the criminal procedural defense system of UK-US legal system and Mainland legal system. UK-US legal system is represented by U.S.A. The procedural defense in U.S.A operates through three kinds of systems mainly, respectively, the Illegal evidence elimination rule, the Cancel the system of prosecuting and the Procedural appeal system. Mainland legal system is represented by France. The procedural defense in France is mainly exercised through the Invalid system of the criminal suit behavior. It includes the Legal and invalid, the substance invalid, the condition invalid and the Public beneficial invalid and so on. Finally, in this part some benefits are drawn from these two legal systems, which can be used as reference by China. The third part analyzes the current situation and difficulty of the criminal procedural defense in our country . It can be obtained that our country has some difficulies in it by analyzing the legislative state and administration of justice practise in our country.Concrete reasons: (1) Influence of the traditional social cultural idea;(2)There are defects in the procedural sanction system;(3) The system of advocacy is not complete;(4) Lacking the Judicial censorship.It makes foreshadowing for the following concrete measure that completes criminal procedural defense of our country.The fourth part proposes the concrete measure of criminal procedural defense in our country. First of all, it emphasizes the prerequisite constructed of criminal procedural defense . It can improve people's procedure consciousness , establish the idea that the entity is regarded as equally important. Secondly, it proposes the construction measure of the criminal procedural defense system of our country:(1)Stipulates the way to start criminal procedural defense ;(2) Defines burden of proof and identification standard of criminal procedural defense;(3) Expands the object of criminal procedural defense. Finally, it sets up the relevant systems of criminal procedural defense system from the Judicial censorship ,the procedural sanction system, the procedural sanction system, and the system of advocacy, etc.