On The Procedural Defense

As one of the important system in criminal proceedings, the criminal defense system is the core security system for protecting the crime suspect or defendant’s legitimate rights and interests. It is of great importance both in contributing justice and protecting human rights. The substantive defense can be considered as the core of the traditional criminal defense, that is, taking the suspect and the defendant’s conviction and sentencing questions as a starting point. With the rapid development of the conceptions of procedural justice and human rights’ protection, the procedural defense is gradually entering into the litigation practice and become an attention focus for the scholars. Different from the physical nature of the defense, the procedural defense is a defend method based on the procedure itself. It raises the proposal of the innocence, minor crime or criminal liability exemption of the suspect or defendant according to the illegal procedural activities during investigation, prosecution, trial, etc. Moreover, it can demand the supplements or reinvestigation of illegally processed proceedings, or exclusion of the illegally obtained evidence and so on.As an indispensable way of defense in criminal defense domain, procedural defense directly contributes to the invalidity of the illegal activity during the investigation, prosecution and trial procedure, ultimately protect the legal rights of the suspect or defendant. The striking on illegal activities of the public authority can play an important part in protection of judicial justice, legitimate rights and interests of the suspect or defendant, human rights and so on. In western developed countries, procedural defense is rather perfect and playing an vital role in protecting the procedure justice and human rights. But in our country, the criminal justice field is "entity attention, procedure contempt" for a long time, resulting the phenomena of extended detention, torture to extract confessions, deprivation of litigation rights and other violations of legal procedures are occurring from time to time and repeated emergence. These have become to be the outstanding and focus problems in Chinese criminal justice community. Besides, the imperfection of Chinese criminal justice procedural legislation as well as the lack of procedural examination and sanction mechanism causes the dyfunction of procedural defense. As a result of the lagging development of procedural defense in our country, the academic research is relatively small and mostly in the preliminary discussion stage. It is necessary to research deeply in procedural defense to obtain a reforming way.Based on other related research and beginning with the procedural defense theory, this paper mainly utilizes the comparison research method to accurately place the procedural defense by analysis of the procedural defense and its differences with the related conceptions. The procedural defense theory and its value are also analyzed. And then by introduction of Anglo-American law system and continental law system countries procedural defense, comparison to the procedural defense in China’s legislation and judicial status, as well as analysis of the Supreme People’s court, the Supreme People’s Procuratorate, the Ministry of public security, national security and the Ministry of Justice on death penalty cases" for examining and judging the evidence of and" on the handling of exclusion of illegal evidence in criminal cases of", this paper emphasize the possible influence on the procedural defense and the different practice with foreign developed countries. After the finding of difficulties and problems of the procedural defense development in China, the suggestions of orientation of development and reformation are put forward.