On The Procedural Defense

Procedural Defense is a new configuration of defense in criminal litigation practitioners and researchers. In Jurisprudence of China, the research of this configuration is quite immature, and it can be seen by the complex definition to Procedural Defense. This article is based on the researchers'results, and it gives a definition to Procedural Defense, expounds the property, element of Procedural Defense, and it particularly discusses the difference between Procedural Defense and Substantial Defense, the relationship between Procedural Defense and Procedural Proof, and between Procedural Defense and Procedural Sanctions. It needs to be emphasized that I made 4 necessity and 3 limitation of Procedural Defense, and I combined the reality of China criminal law, descript the difficult of implementing Procedural Defense in China. And in response to the difficult, I gave the direction we should make efforts.In the first chapter of this article, I mainly described the connotation of Procedural Defense and the relationship of the concepts. Specific contents:the concept, property, element of Procedural Defense, the relationship between Procedural Defense and Substantial Defense, Procedural Defense and Procedural Proof, and between Procedural Defense and Procedural Sanctions. The concept, property, element of Procedural Defense belongs to the connotation of Procedural Defense, while the Substantial Defense, Procedural Proof and Procedural Sanctions are three concepts which have closely related with Procedural Defense.In the second chapter of this article, I described the necessity of Procedural Defense. I concluded four necessities of Procedural Defense:First, accompanied by social transformation and development of commodity economy, the consciousness of people's rights especially the consciousness of procedural rights is more and more awakened; Second, in the investigation, prosecution and judicial department, there are a lot of procedural violations, and this encroaches the rights of criminal suspects and defendants, so we need to promote Procedural Defense as soon as we can. Third, Procedural Defense is a requirement in exercising the full right to defend. Forth, the status of Criminal Defense shows that we need a new configuration like Procedural Defense to get into Criminal Defense, so that the effect of defense can be improved.In the third chapter of this article, I described the limitation of Procedural Defense. I concluded three limitations of Procedural Defense:if Procedural Defense succeeded, first, it's a big help to the criminal suspects and defendants; second, it's unfair to the victims and their families; third, it's unfair to social, and even may lead to social panic.In the forth chapter of this article, I described the difficulty of Procedural Defense and the direction we should make efforts. I described five difficulties:first, the limitation of Procedural Defense makes people unwilling to accept this form of defense; second, the importance of procedures and substantive is still controversial; third, the position of Police, Procuratorate is too high, and the court does not have enough independence and authority; forth, there is deficiency in the Judicial Review System of the Procedural legitimacy in detection, litigation and trial; five, the unspoken rules of criminal justice make Procedural Defense progress very difficultly. And in response to these difficulties, I described four efforts we should make:first, in response to the difficult that the limitation of Procedural Defense makes people unwilling to accept this form of defense, we should understand them, and at the same time, we should spread this idea through various channels as far as possible; second, in response to the difficult that the importance of procedures and substantive is still controversial, we should get out of the controversy, and stand at a higher level, namely, the constitutional level to understand why we conduct Procedural Defense to protect the rights of criminal suspects and defendants; third, improve the independence and authority of the court through judicial reform; forth, do legislative work to give a legal basis for a Procedural Defense.