The Principle Of Proportion In China’s Criminal Procedure

Principle of proportion includes principle of appropriateness, principleof necessity and principle of proportion in narrow sense. Criminalproceedings is a process in which judicial offices carry out the distributionof benefits, conflict of interests and measurement of interests; the corevalue of the Law of Criminal Procedure reflects the essential and naturalspirit of the principle of proportion.The full text is divided into four chapters. Chapter one: The Outline onPrinciple of Proportion. First, the essay will give the basic introduction forthe principle of proportion by the fundamental level to readers, includingthe basic meaning of it; the essence of the principle of proportion is tobalance the relationship between public power and private rights; principle of proportion includes principle of appropriateness, principle of necessityand principle of balance. Second, the essay will discuss the origin anddevelopment of principle of proportion.Chapter two: The Theoretical Fundament for Principle of Proportion.This chapter is to discuss the theoretical basis of principle of proportion.First of all, principle of rule of law, The principle of proportion requiresvarious means taken by organs of state power which are necessary toadapted to the wanted purpose to take the minimum intervention as so to bein line with the proportion between means and purposes. Secondly, theprotection of human rights; in criminal proceedings, the citizen’s naturalhuman rights are often vulnerable to be infringed, so “The Newly-amendedCode of Criminal Procedure of China” would bring “protection and respectfor human rights” into itself as an important part of it.Chapter three: principle of proportion should be introduced to the lawof criminal procedure. This chapter demonstrates that principle ofproportion should be introduced to the code of criminal procedure from anempirical angle, including the concept of rule of law, the concept ofcriminal justice, the linking between Constitution and Law of CriminalProcedure and the feasibility to introduce it to procedural laws through aseries of proofs on other related laws.Chapter four: principle of proportion and criminal litigation. Thischapter is to analyze the principle of proportion at different stages of criminal proceedings, mainly based on the relevant provision of thenewly-amended Code of Criminal Procedure, from a legal perspective.First, principle of proportion is extensively embodied in the amendment oncriminal coercive measures which partially reflected on residentialsurveillance, conditions for arrestment and procedures of it, and therelevant regulations about the proceeding with notifying dependents ofarrestees after taking criminal coercive measures. Second, principle ofproportion also reflected on the newly-added technical investigation andsecret investigation. Thirdly, non-prosecution at judicial discretion andadditional non-prosecution reflected that when all of which can getapproach to the purpose of criminal prosecution, taking the suspects tocause their damage as fewer as possible. Lastly, non prosecution ofcriminal jurisdiction,the trial reconciliation procedure and summaryprocedure are reflecting the discretion of the judge, the principle ofproportionality is the regulation of judges’abuse of discretion.