Study Of The Theory Of Criminal Appeal

In the science of tile law of criminal action, most scholars use the rightof action, a basic theory in the science of the law of civil action, as atheoretical base while analyzing a concrete problem, but merely compileworks systematically about it. Although some scholars have concerned theright of criminal action since 1992, the study goes forward slowly. It arousesthe writer' s interest. What core substance does the theory of the right ofaction have? How is the theory of the right of action developing in thecriminal action field? Why. the scholars put less emphasis on it? At present, isit necessary and feasible to think highly of the right of criminal action? Fromthe basic theory of the right of action, the writer would probe into theparticularities of the right of the crimianl action, the reasons of its difficultstudy and how it inspires the reform of the criminal action system.The first part is to introduce the basic theory of the right of action andthe right of crimianl action. From the historical origin, the writer firstintroduces the development of the right of action, thus defining the "right ofaction", expounding its connotation, extention and value. Stressly concerningthe charicteristics of the right of criminal action, the writer analyzes anddiscusses its historical development, present situation, definition, connotation,extention and value. Therefore, some ambiguous problems are clarified, suchas the relationship between the right of criminal action and the human rights,the relationship between the right of criminal action and the right of action inchief. Moreover, this part comfirms that the right of criminal action hasexisted since China' s slave society, as well as promulgates its features ofequality and punishment.In the second part, from the historical and actual angles, the writer pointsout three obstruction facts which influences the development of China' s rightof criminal action. First of all, the influence comes from the state traditionand the judical system. The theory of the right of action developing difficultlyin the criminal action field has a closed connection with China' s thousandyears of centralized feudal rule and lack of democracy tradition. Secondly, the setbacks met at the legal study in the 20th century, the movement against the"old law" at the beginning of China' s establishment and the completelyintrduction of the criminal action system from the former Soviet Union,caused China standard on punishing crime but pay less attention on theaccused' s right because of laking of system base and policy guide. Thirdly,because of China' s backward economical and social development, limitingthe accused' s right is regarded as an important way to improve the actionefficiency and save action cost.The third part is the analysis on the necessity of the right of criminalaction. The necessity includs: 1. It's needed to guarantee the human rights.The nature of the right of criminal action is to prvent the parties in the casefrom being violated. 2. It's needed to develop and perfect the criminal actionsystem. We should put more attention on the theory of the right of thecriminal action when studying the criminal action system scientifically, or it's difficult to make right choice in practice. 3. It's needed to develop themarket economy. 4. It conforms to the worldwide demands of protecting theaccused' s human rights. Now, we should keep up with the internationalcriminal principles, as far as possible to avoid reservation clauses.In the fourth part, the writer uses the theory of the right of criminalaction in reforming the present law of criminal action. It puts forward that anobjective of the criminal action system is to realize the right of criminalaction and make right judgment of the accused' s responsibility for a crime.Based on the theory of the right of criminal action, some feasible suggestions,in accordance with the existed problems and controvery, are advanced.According to the theory of the right of criminal action, we should distinguishthe right of action and the exercise of jurisdiction to protect the accused' sright of action and limit the judical authority, thus putting the prosecutor,accused and judge relationship in order, and potimizing the disposition ofjudical authority. At last, the writer points out that strengthening protection forthe accused' s right of action is to change the condition that emphasizes oncrime punishment but makes light of guarantee for human rights. It aims atprotecting human rights in the criminal action, but not sidely underlining "human rights is the highest". Therefore, the judical authority could not beweakened excessively while protecting the human rights. On another hand,the accused' s right of action should be controlled reasonably.The vitality of each thoery comes from the actual necessaries to it,so the theory should embodies its value and function in resolvingproblems. We should strengthen research on the basic theory of the lawof criminal action to make the criminal action institution systematicallyand scientifically. Moreover, the study on the theory of the right ofcriminal action should, be deepened, widened and minuted tocomprehensively systemized the right of criminal action.