On The Procedural Defense

Procedural defense is a defensive manner from procedure of defendant in the criminal action. In judicial practice, extort confessions by torture, illegal search and seizure, detention beyond the legally prescribed time limits, illegal taking evidences, and so on, they are all procedural unlawful act, and they exist in each stage of criminal action. In order to reinforce human rights protection of defendants, to restraint efficiently procedural unlawful act, we should further perfect procedural defense system. This article begins from procedural concept, probing the characteristic of procedural defense, actionable value, and so on, inspecting extraterritorial main countries' relative provision of procedural defense, analyzing reasons of procedural defense' slow development, at the same time, coming up with proposals improving procedural defense of our country.In addition to this introduction and conclusion, this article is divided into four parts.The first part was introduction to procedural defense. Firstly it defined the concept of procedural defense, and it was that procedural defense put forward opinions that criminal suspect, defendant either innocence, light crime, or not to being pursued criminal responsibility, and asked that judicial proceedings that were not by operation of law should be replenished and carried out once more, and the illegal evidences should be excluded, and so on, so they could defense from proceeding, by reason of relative departments' illegal detecting, suing, trial proceedings. Then it analyzed the theoretical basis and features of procedural defense. Finally probed actionable value of procedural defense, and it was that it contributed to embody right restricting power, that it contributed to correct the concept of "value entity, scorn proceeding", that it contributed to constrain unlawful act of investigation organ, judicial and procuratorial organs, and so on.The second part was concerning foreign main inspect of procedural defense. Firstly, it inspected the procedural defense of civil law countries' representative—France. There were legal invalid and substantial invalid situations of procedural defense stipulated in the French Criminal Law. Secondly it inspected the procedural defense of Anglo-American Legal System countries' representative—USA. Excluding illegal evidence system is the main measure to sanction procedural illegality; repealing indict is another procedural sanction measure. Finally, it probed the mixed action mode—Japan' procedural defense. Japan' procedural defense has its unique features, and it is different from that of France and USA.The third part was about current situation and cause analysis of our country's development of procedural defense. Firstly, it introduced current situation of our country's development of procedural defense. Although it had being developed slowly, its application in practice was very few, and it developed fairly slow. Secondly, it analyzed the reasons that our country's procedural defense slowly developed. The reasons embodied some respects: in thought of "value entity, despise procedure" concept hadn't fundamentally turned around, lacking procedural responsibility theory was another major factor influencing the development of procedural defense. Inequality to the two parties in legislation had a strong impact on the development of procedural defense. At the same time, there was not perfect procedural sanction system, and so on.The final part put forward some proposals on perfecting procedural defense. In the first place, we should set up judicial logos that entity is equal to procedure. Entity result is risen from procedure. In the second place, we should perfect procedural legal obligation theory in order to put forward support for procedural defense in theory. In the third place, we should perfect system of safeguard of right to defense of counsel, to endow them with meeting with defendant at any time without illegal intervene. And counsel has the present right when investigation organ examine accused persons, and endow counsel with criminal immunity. Finally, we should perfect procedural sanction mechanism in order to facilitate sanctioning procedural unlawful acts.