On Construction A System Balancing Between Prosecution And Defense Under The Principle Of Procedural Justice

Justice is the eternal pursuit of mankind, and mankind's understanding of procedural justice has experienced a long period of time. In the earlier periods, people's conception of justice is more than "substantial justice" or "substantive justice," and they pay attention to the legitimacy of the results of various activities, rather than the legitimacy of the process. Contemporary concepts of procedural justice stemmed from the "natural justice" principle of UK and the "Due Process" principle of US, but it is merely a legal norm of the general expression, rather than systemic statements. The first one studied the issue of procedural justice is Bentham, who tried to evaluate the value of procedures from the results of it, and formed a far-reaching utilitarian concept of rules. After World War II, procedural justice conception resulted in rapid development, some scholars started to study the legitimacy of the procress itself. The publishing of Rawls "On Justice" put the study of procedural justice to a new height.By the end of the 20th century, people's understanding of procedural justice gradually started to convergence. Contemporary scholars' understanding of the theory of procedural justice has become more consistent. Robert Summers and Michael D. Eastman's "procedures value" theory is the representative one. Chinese scholars began to study procedural justice issues in the 1990s. By fully absorbing western scholars' theory on procedural justice, Chinese scholars researched the subject in their own respective areas within the local context.Another example of the convergence in understanding of procedural justice is the prosperous legislation on procedural justice in the international community. In the field of international law, particularly in the field of international criminal justice, the system and legal principles with procedural justice conceptions were increasingly recognized by the international community and embodied in many international legal documents. The United Nations has been working to promote criminal justice civilization's progress and development. The UN Standard and Norms in Criminal Justice has always been viewed as a reference to the minimum standards, and recognized by many regional legal documents. Balance between Prosecution and Defense is the main content of Due Process in the field of criminal justice, which reflects the significant value of this modern society. In criminal proceedings, the imbalance of strength between state and individuals will directly affect the protection of the rights of the individuals, so that the equality between the prosecution and the defense could be emphasized. Balance between prosecution and the defense is the inherent requirements of procedural subject theory. Only when the people take part in judicial activities as a subjective existence, enjoying their rights, committing to their obligations, thereby forming the procedural results, will it be consistent with the requirements of procedural justice. The realization of the balance between prosecution and defense need the establishment of a guarantee mechanism such as the right to silence, neutral magistrate, defense, and the rules of evidence and so on.China is in a period of social transition, institutional civilization is the inherent requirement of China's social development. There are still many deficiencies with China's 1996 amendments of the Criminal Procedure Law. The UN Standard and Norms in Criminal Justice based on the theory of procedural justice is the criterion for judging the level of civilization of a country's criminal justice, and China should construct the system with balance between the prosecution and the defense with reference to it.Neutrality of adjudication is the basic requirement of keeping the balance between prosecutor and the defendant, and the judicial independence system is the guarantee for the judges to keep neutral. Therefore, institutionalized methods shall be adopted to promote judicial independence and neutrality of adjudication. Right to Silence as the basic human rights of criminal suspect and one of the minimum standards of criminal justice of modern country has been emphasized and upheld by the international community generally. China has not recognized the right to silence. Right to silence should be established on the basis of adapting to the conditions of our country. The system of defense is the core of the principle of balance between prosecution and defense. China's system of defense is not conducive to the realization of the balance between prosecution and defense, so the lawyer's authority should be expanded in the phase of criminal investigation, and their right of gathering evidence should be strengthened. Investigation detention should follow the basic requirements of procedural justice with necessity, legitimacy and actionablity. Comparing with the United Nations documents and the relevant documents, Chinese criminal detention and arrest system is dotted with unreasonableness, the habeas corpus system should be established, and the use of Bail-bending-trial should be expanded in order to reduce pre-trial custody, so that the defendant should have the ability to really significant confrontation with the prosecution. Rule of exclusionary illegal evidence is important to realize the value of balancing prosecution and defense, with the rule, the law could supervise the prosecution to handle the case lawfully and defer the illegal police conduct for evidence. China has initially established a rule of exclusionary of illegal evidence in the Criminal Procedure Law, but there are still many defects. To establish the rule of exclusionary illegal evidence, we must not only to weigh between the value of substantive justice and procedural justice, but also to take fully into account the current environment of the rule of law, judicial resources and the quality of judicial officers comprehensive. Principle of Direct Verbal Trial accords with the principles of modern proceedings structure, and helps to guarantee the equal status between prosecution and defense. China should establish the Principle of Direct Verbal Trial and a strict guarantee system for expert witness and normal witness appearing in court in order to ensure the implementation of the Principle of Direct Verbal Trial, and realize the confrontation between the prosecution and defense in court.