On China's Criminal Defence Mode Of Reconstruction

The NPC Standing Committee announced the five-year legislative plan and the amended Criminal Procedure Law has been listed as the first launch of the project. It is imperative and also the trend of the times to amend the Criminal Procedure Law. The goal is to amend the Criminal Procedure Law become accord with China's national conditions and being in line with modern democratic country ruled by law. As China's concept of protection of human rights is written into the Constitution of China, the criminal defense system which embodies protection of human rights will inevitably become a hot issue of amending. And it become the issue problem which legislators should face firstly that how to edit, or what is the direction of modification and what is the extent to modify. Therefore, scholars have conducted in-depth study and a lot of amendments. But overall,and more from the technical level analysis, and the lack of research on the overall structure. This paper emphasizes to analyze models of criminal defense in two sort of law system from the purpose of criminal proceedings and criminal procedure structures, pointing out that litigation model of common law system corresponds to the model of liberal defense, litigation model of civil law system corresponding to the model of limitative defense, with mixed litigation mode corresponding to the model of mixed defense. Liberal defense model advocates the basic litigation concept of supremacy of free and equality. Defendants were given a wide range of litigation rights .And the protection of the defense rights is also extremely thoughtful. The model stressed defense rights and setting up obstacles to prosecution power in order to achieve equality of the two sides of the confrontation. The traditional civil law countries are more inclined to guarantee security when two major value targets conflict which are liberty and security. For protection of human rights, it advocates active use and involvement of state power, in particular the executive power. So in criminal proceedings, on the one hand the national prosecution authorities and the judicial organs have obligations of finding out the case, on the other hand, the widespread litigation rights were given and also restricted. The mixed criminal defense model tries to discover the truth of case and pursue for due process to achieve balance. Compare to two law system, our country's criminal defense model established by China's current Criminal Procedural Law is the model of strong limitative defense. Reconstruction of China's criminal defense model must be under the guidance of the thinking. In China's traditional legal systems, there was no defense system, and also no available local resources of criminal defense system can be made use of. Our country can only gain legislative inspiration from foreign countries experience. Therefore, the Reconstruction of China's criminal defense mode can not be separated from transplantation. But China's legal transplantation must be based on our country's conditions. In China's current political, economic and cultural conditions, on the one hand the development of market economy has made people understand more clearly about freedom,the rule of law and protection of human rights; on the other hand, due to the impact of tradition and reality, people prefer to consider the value of security above everything else. Therefore reconstruction of criminal defense system, should be sufficient to protect public safety can also be effective in protecting the human rights of mixed-mode as a defense system reform of China's criminal defense of rational choice.