The Research Between The Criminal Litigious Right And Jurisdiction

Litigation right, the basic power of law to give the parties litigation, is the foundation of the parties’ litigation activity. Recent years, with the litigation right theory import to the criminal procedure, it has become a hot academic research. As one of the important rights of litigation subject, criminal litigation right is an important power of starting, developing, and ending to litigation activity. As a matter of right, litigation right is also vulnerable to invasion, mainly comes from the state power, especially the jurisdiction. As a national judicial power, criminal jurisdiction is the basis of court cases. According to the principle of judicial final referee, the referee right has decisive meaning to the subjects’ realize rights and procedural rights. Litigation right and jurisdiction is the two fundamental elements of the criminal lawsuit activity, both unified in every criminal proceedingsLitigation right theory is developed in the field of civil litigation, but because of its difficult, the litigation right research in the civil litigation system has always been in a situation of marking time. The establishment of generalized litigation right theory broke the deadlock, that litigation is not the patent of civil procedure, but the upper concept of civil litigation, constitutional litigation, administrative litigation and criminal litigation right. Within this framework, educational world construct the criminal litigation system. Not only has the equality of civil litigation, criminal litigation right confrontational and procedural characteristics, also has exercised the stages, the diversification of the diversity of main body, content, and dispose of the finiteness etc. Criminal litigation can be divided into public litigation, the litigation right of the victim and the defendant of the litigation right, public litigation and the suit right of the individual, also can be divided into litigation pretrial litigation and trial. In each of the criminal proceedings, litigation right exist or not need a judgment, to ensure the authority of starting a criminal litigation, the criminal litigation elements namely provided for this purpose. Criminal jurisdiction is part of the right of criminal trial, focus on find out the facts, applying laws to give a judge. According to different types of the referee, the referee right can be divided into power, the ruling rights, right of discretion, mediation and emporium, on the basis of the content of the criminal justice issues, can be divided into substantive rights and procedural referee. And according to the nature of the case for matters, it can be divided into the right of conviction and sentencing. Criminal jurisdiction has the features judgment, certainty, independent and passive. Scope in pre-trial procedure, pre-trial review procedure and trial procedure, and also includes a second trial program (appeal), the third time even retrial procedure, etc.As a basic right and power of criminal lawsuit activity, the ideal relationship is like this:correspondence in the form, restriction of the content and the unity of the role. The correspondence in the form is shown as:the criminal litigation right is the precondition of jurisdiction, and the jurisdiction is the response to litigation jurisdiction. The restriction of the content characterized by:criminal litigation right defines the scope of the jurisdiction and the criminal jurisdiction decides the realization of the litigation right. The unity of the role not only unified in human rights protection, also unified in the judicial practice.The positioning and its operation process of the relationship of criminal litigation right and jurisdiction is a standard to measure the level of a nation’s criminal lawsuit activity. Along with the judicial personnel troop overall quality enhancement and the vast majority of the people law consciousness enhancement, the relationship of litigation right and jurisdiction relationships will gradually toward to what it will be in our country. But at present the relationship is not optimistic:criminal jurisdiction beyond the scope of the litigation right to appeal and absence when necessary, shown as the judges change charges by themselves, the court implements comprehensive review to the second instance, the court start the retrial by themselves and the absence of jurisdiction when a criminal suspect refuses to accept not to prosecute decision, the court "crackdown" the litigation right or turned a blind eye to the litigation right be "crackdown". Criminal litigation right squeezed out by jurisdiction and expanse sometimes, appears to the standard of private prosecution is too high, the parties, the parties have no qualification in the retrial procedure judgment, and the procurator has the legal supervise in the public prosecution, the procurator is permanent to withdraw the public prosecution anytime. The relationship of the criminal litigious right and jurisdiction may has these reasons:the profound affection of traditional legal thought,the lack of due process concept and corresponding measures of imperfect, discovery system is not sound, and the lawyers involved in criminal litigation protection does not reach the designated position, etc.As a public power, jurisdiction can guarantee the exercise of the ligation right, but easy to be abused to violate it. The criminal litigation can’t dominate the jurisdiction in China, we can through the following countermeasures and suggestions to revise their relation:clear typical criminal litigious right and jurisdiction of the exercise the body, including the right to apply for a retrial is located in the people, and cancel the authority of the judicial committee case. Revised pre-trial stage of criminal litigation jurisdiction in relation to the countermeasures and Suggestions, including abolishing private prosecution of public prosecution system, the special procedure is introduced in relative not to prosecute. Revised trial of criminal litigation jurisdiction in relation to the countermeasures and suggestions, including the withdrawal of public prosecution of procurator shall practice a system of periodic restrictions and guarantee compulsory testifying to get effective implementation, the abolition of the procurator in the process of trial before the legal supervision, set up to review procedures, etc.