The "Soft Law" In The Criminal Procedure: Cases And Solutions

The term “soft law” appeared originally in the field of public international law, and laterit has been used in other areas of laws, such as law of European Union, administrative law,environmental law etc. Since the beginning of its birth, the theory of “soft law” has been acontroversial topic and it also has attracted the attention of Chinese academic circles in recentyears. There is no general theory about “soft law” in the academic circles, but the widespreadexistence of “soft law” is an indisputable fact. The research of the phenomenon of “soft law”mainly exists in the field of international law, law of European Union, administrative law,commercial law, law of cooperation, environmental law etc, and it has not been extended toall areas of laws. The research method of this paper is applying the theory of “soft law” to theChinese criminal procedure. The aim of this paper is to analyze the phenomenon of "soft law"in the Chinese criminal procedure, and then to find the way to solve the problems from thephenomenon of “soft law”.In general the term “soft law” is intended to indicate two types of rules: one is the“non-legal soft law”, that is rules which have no strict legally binding force but whichnevertheless have practical effects. Although such rules have no legally binding force, theymay not completely lack of legal significance. The other one is the “legal soft law”, that is lawwhich is established by the country but the instrument of which nevertheless may have beensoftened. This type of law is statute law, the implementation of which is ensured by thenational force, but they actually may not have completely legal significance due to thesoftening of the instrument. The “non-legal soft law” can be further divided into “soft law” inthe field of international law and “soft law” in the areas of domestic social management. The“legal soft law” can be further divided into fuzzy “soft law”,“soft law” lack of legalconsequences and “soft law” lack of coercive power.The author takes the current Criminal Procedure Law of the People’s Republic of Chinaas sample to analyze the phenomenon of "soft law" in the criminal procedure. But this paperalso relate to some content of the2011Amendment of the Criminal Procedure Law (Draft).The key point of this paper is to use a new research method to analyze the law, rather thanonly to study the content of the law itself. The current Criminal Procedure Law falls into thecategory of “legal soft law”. There are there kinds of the phenomenon of “soft law” in it:fuzzy rules, rules lack of legal consequences and rules lack of coercive power. The causes of the phenomenon of “soft law” in the criminal procedure mainly lie in three aspects: Thecontent of text is unclear; There are some defects in the instrument of the law; Proceduralrules are not enough rigid.The phenomenon of “soft law” in the criminal procedure should be treated differently.The phenomenon of “soft law” conforming to the need of the law should not be interfered toomuch. But the phenomenon of “soft law” which hinders criminal procedure to proceedsmoothly and damages the procedural justice should be corrected by certain measures. Thenthe relevant provisions in the Criminal Procedure Law can be returned to “hard law”. Themainly measures to correct the phenomenon of "soft law" in the criminal procedure areimproving the statute laws, improving the system of the interpretation of Criminal ProcedureLaw and improving the regime of justice. There are four methods to improve the statute laws:to refine the fuzzy rules, to stipulate the legal consequences, to improve the supervisionsystem and to clear the “unspoken rules”. The first step to improve the system of theinterpretation of Criminal Procedure Law is to clear the current interpretation of CriminalProcedure Law, and the next step is to refine the system of the interpretation of CriminalProcedure Law. Realizing the independence of judicature, correcting the perception of judicialmembers and improving the mechanism of sanction are three measures to improve the regimeof justice.