On The Prosecution Of Human Rights Protection

In both the criminal law science and judicial practice in China, law experts and judicial personnel have been always confused with the conflict between crackdown on crime and guarantee of human rights. There exist some chronic maladies such as "extorting a confession by torture" and "extended custody" with respect to the rights of the accused. Therefore, it is universally thought that we should further reform our criminal litigation system according to the uniform international standard by referring to the litigation modes of "two major genealogies of law", and establish the so-called "due process" and advance the level of guarantee of human rights. In the thesis, the author argues that, if we analyze the constitutional cause of conflicts between state power and rights of the accused in a certain field (that is the prosecution of criminals), and put in order the relations between state power and rights of the accused, we will draw a line for the guarantee of the accused in the fundamental law sense and will lay constitutional foundation of the resolution of this issue within the range of the criminal legal system.According to the basic doctrine of constitutionalism, citizens' right gives birth to state power while state power is subject to citizens' right. State power, only as a means for the execution of the responsibility, should be set and exercised with the limits of the state responsibilities provided by the Constitution. So, it is one of the state's duties to protect the human rights of the accused on the basis of the constitutional spirit. When prosecuting a criminal, the judicial branch should firstly abide by the Constitution and competent criminal laws, and act in accordance with legal procedures strictly as well. Any action that oversteps the authority entitled by the Constitution and laws will give rise to the abusiveness of the right to prosecute and will encroach upon the rights of the accused. Because of this, the legislation should provide the accused with practice and effective right to defense and right to relief while foreclosing undue infringement.The constitutional guarantee of the human rights of the accused means preventing the legislation from making any criminal law or statute that will probably do harm to the constitutional rights of the accused; and moreover, providing foundations for reviewingwhether a promulgated criminal law or statute is constitutional; setting up a constitutional line of defense for the accused against unlawful infringement; and finally making criminal judicature go onto a constitutionally civilized crack. Basically, the criminal litigation aims to guard against the misuse of state power of punishment, to guarantee the rights of the accused, and to maintain constitutional structure and order.The past twenty years have witnessed tremendous achievements in guaranteeing human rights both in the constitutional sense and in the judicial practice in China. Despite obvious to anyone, it is never perfect. Facing the problems in the guarantee of the rights of the accused, the author makes particular analyses and putts forward the following suggestions: (1) to establish the principle of "presumption of innocence" and the principle of "a legally prescribed punishment for a specified crime" as two of constitutional principles; (2) to regard the right to sue as one of basic rights of citizens; (3) to provide judicial relief to citizens concerning the basic constitutional rights; (4) to endow the accused with a complete and substantial right of defense and to counsel; (5) to establish a rule of "imposing no self-inculpation upon anyone"; (6) to strengthen the supervision of the procedure of investigation; (7) to set up judicial review system of arrest measures; (8) to perfect the guarantee of petition for withdrawal; (9) to further perfect ways of court trial; and (10) to set up a rule of "non bis in idem" (meaning that no one should be twice harassed for the same cause).