| The purpose of article derives from the writer's attention on victim's appellant right . As a problem which has been argued in the field of judicial practice and theory research, the writer attend it as a breakthrough point, then, penetrate into an more basic problem, and finally, work out an relatively proper expression on the issue of victim's appellant right. As the research go further, we find that the issue of victim's appellant right is an external one, and the internal one is the criminal right of suit. As the development of the reseaech of the criminal right of suit is relatively slow and extenal in China, the writer attend to get into the issue from a distinct direction. We try to regulate all kinds of relationship in the theoretic framework of criminal right of suit. If we could achive the purpose, many problem in the work of judicial practice and theory research should be expressed exactly , And these expressions should be considered as the foudation of the solution of the problem.This article was constituted by four parts:The first: the right of action and the right of criminal action. We trid to intoduce the basic theory of the problem in the part, and this part, more internally, will derived into two smaller part: the basic theory of right of action and criminal right of suit. The first one is to inroduce four kinds of opinion, then find out the main defects in these opinions. The second part is to inroduce the main achivement about bring the theory of the right of civil action into the research of the right of criminal action.There are two kinds of achivement: the most popular view and the a kind of new research in the area.These two is different in foudation.. The writer while enumerates two kind of different limits, has carried on the thorough careful analysis emphatically to the preceding this of theory criminal right of suit. Mainly elaborates itself from the country and members of different social classes' in lawsuit relatively independent status and the parity as well as the members of different social classes to state intervention request's initiative these two angles to this kind of criminal right of suit theory some understanding and the analysis. While introduced briefly the second kind of emerging criminal right of suit theory, analyzes the criminal right of suit emphatically the root and the essence. Through is clear about the criminal right of suit to the lawsuit system's special characteristic's elaboration the essence and the root. Finally, in the above analysis and in the explanation foundation, carries on the theory summary to the right of suit and the criminal right of suit Is further clear about the right of suit and the criminal right of suit source and the essence, obtains the right of suit the essence is "the right", but is not "the power" this conclusion.The second part, criminal appeal. This part mainly and guides through two link's upholstery to realize finally to the criminal appeal nature one kind of judgment These two links including appeal general concept and appeal historical origin. First through to the appeal concept's thorough evaluation, as well as the appeal several kind of history shape's elaboration, for better makes the analysis and the understanding in the later word to the appeal nature foreshadows. Then launches the elaboration to the appeal nature's analysis and the understanding. The second part, criminal appeal. This part mainly and guides through two link's upholstery finally to in the appeal nature analysis and the understanding, the writer attempted from two to elaborate own related viewpoint with formerly the different angle. The first angle is the appeal and the country "the legitimate rights and interests" expansion; The second angle is the country to criminal prosecution's involvement From first angle embarking, the scope of interest which involved to the appeal has made the limits; Take the second angle as the basic point, the discrimination criminal prosecution's two dutiesrealizes the national rule function and the maintenance society public interest, and pointed out in the appeal the right of suit presents ambiguity and compound characteristic.The third part, in criminal appeal each kind of relations. This part is the entire chapter paper core. The centralism discussed the criminal appeal two general relations and several concrete relations. Our goal is to clear off the right of suit related question which in the criminal appeal involves. First, carries out official duties in the right of suit concept system in the national pure judicial significance's lawsuit right to strip, put forward the conception of "national right of suit". Proposed that this concept is advantageous in avoids the concept :confusion which and the thought confusion causes as a result of the thought einstellung. But proposes this concept the final goal is under this concept system, complete, combs each kind of related right of suit relations which thoroughly in the criminal appeal involves. Enables these relations to have mutually is more reasonable, a more consistent explanation. Then, discrimination appeal and private prosecution. Pointed out that the appeal and the private prosecution essence distinguish lie in the achievement to file the charge the root "the right" the nature to be different. The appeal mentions stems from the social public interest, the private prosecution mentions stems from the members of different social classes personal interest. Because to the appeal and the private prosecution in the root discrimination, has caused the question which two need to explain. in the appeal case whether only to have the public interest which suffers injury, but does not have the personal interest, in private prosecution case whether only to have the personal interest which suffers injury, but does not have the public interest which suffers injury? Appeal and private prosecution whether to establish separately absolutely, cannot transform? In view of these two questions, this part through has made the explanation to several concrete relations' analyses. First, the multianalysis private prosecution has undertaken, the appeal shift situation, then based on this unifies in the preamble to carry on the rationale analysis to the right of suit correlation theories elaboration. Then, clear the right of suit coexisting intrinsic implication which the appeal and in the private prosecution conversion process manifests mutually.The fourth part, victim's right of suit and appeallant right This part of discussions is the present domestic theorists argument quite intense question. All quarters hold the different viewpoint scholar to argue strongly based on reason, declares one's position respectively, the elaboration reason. The writer also has own understanding and the explanation regarding this dispute question, hoped that may as far as possible through have the logical indication to indicate own viewpoint. Actually, the preamble already had the explicit elaboration on the criminal right of suit question, carries on the analysis take these elaborations as the rationale to the victim right of suit and the appeal right question to be possible around to link up, obtains the relatively strong persuasive power. First, is clear from the criminal relief principle and victim's lawsuit status two aspects about the victim right of suit question rationale. Second, take the right of suit and the criminal right of suit's related elaboration as the understanding beginning, in the discussion appeal case victim's right of suit question, and clear out the victim's right of suit the existence as well as in the criminal appeal the national right of suit to the victim's right of suit camouflage. Finally, launches the discussion on victim's appellant right Because victim's appellant right has not been clear out concept limits, and also only pauses at present regarding victim's appeal right in the theory exploration stage, Regarding victim's appeal right question this article mainly through to argued that the bilateral viewpoint the summary and analyzes and unifies the theory main key which in the preamble establishes to elaborate own viewpoint. The theorists have two different opinions which regarding the victim appeal right question opposes mutually, definitely opinion and negative opinion coexisting. The writer through to two opinion's summary analyses, induces four differences. These four divergent centralism has manifested two side viewpoint opposition. Therefore penetrates the analysis after these four differences the writer thought that must in the theory and the practice domain confirmed victim's appeal right, and formulates the related law system to safeguard the practice of the victim's appeal right... |
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