Ponderation And Reconstruction Of Private Prosecution In China

In the criminal law scope, with the development of action system, it is an inevitable result that the right of action is performed by the specified organ instead of individual. In modern society, the declination of private prosecution right and system is an eloquent fact. Through using value analyzing method, we can see that right of private prosecution has the following value: human rights value-the victim's interests can be protected; sequence value-a balance can be reached between public interests and personal interests; tolerance value-an embodiment of modestly declining spirit in criminal law; benefit value-a balance between suit cost and suit profit; harmony value-the pursuit in resuming justice. The right of private prosecution is a citizen's fundamental human right, owing it fits china's national condition. It is of vital importance to guarantee citizens'power. Private prosecution is characterized by not being able to be replaced by public prosecution, and thus it has its own practical legitimation and reasonableness.The reserve of criminal private prosecution is based on the fact that some cases are mainly related to a citizen's personal interests, or those cases happened among family members, and there is still mutual tolerance between the criminal and victim. Lack of the government's interference is helpful to the case's solution, and is also helpful to the victim's interests and education. China's modern criminal suit law is contrary to the world trend of suit system. The law enlarges the scope of private prosecution cases, which brought up a violent debate in theoretical circle and judicial circle. This thesis begins from analyzing some hot issues in private prosecution system, aiming to put forward some proposals through research. It hopes to be to some extent helpful to the theoretical circle and judicial circle. In order to achieve the above goal, this thesis is written by such methods as jurisprudence method, historical development method, method of real case, and comparison method. The thesis totally includes three part: the introduction,main body and including words.Among them, the main body includes the following five parts. Part 1,through analyzing the development of private prosecution in the early, modern and contemporary human society, it discusses the nature of private prosecution is one pattern of simplified public suit; then, based on some questions related to private prosecution, it elaborates perfection of the private prosecution operation procedure.Part 2,firstly ,based on the private prosecution subject's influence upon the suit process, the author analyzes the subject qualification of the victim, the near relatives of victim, and of the legal agent, it points out the problems and puts forward some countermeasures; secondly, through legal theory and lawmaking analysis, it puts forward that legal person and other non-legal person organizations should be brought into the scope of private prosecution subject; at last, it points out definitely that strict restrictions should be put on those who owns the right of private prosecution instead of others.Part 3, firstly, it elaborates its category and point out some problems existing in the practice, and puts forward some corresponding measures; secondly, as to the slight criminal case that the victim has the proof, the thesis explains its condition,category,and some practical problems. It suggests that bigamy,desertion crime, infringe upon citizen democracy and infringe upon the property should be designated as the public prosecution case; thirdly, the author analyzes the conditions by which public prosecution can be turned into private prosecution; at last, from the whole view of private prosecution scope, it puts forward some corresponding methods.The fourth part, it points out some problems in accepting private prosecution cases, and puts forward some counter measures. It particularly emphasizes that the procuratorial organ should get involved in order to support legal rights of the victim.The fifth part, the proof is always the litigant core. Firstly, it concretely analyzes the proof stand in the different litigation stage and corpus; secondly, it puts forward that to perfect private prosecution case, four great proof rules should be established, namely the proof display rule, the proof inquisition to cross-inquiry rule, illegal proof expel rule, and the proof to be advantageous to accused person rule.