Research On The Personal Privacy Exception Of Public Criminal Trial System

As we all know, Judicial transparency is one of the basic requirements of modernlaw, Open system of criminal justice and its operation is an important manifestation ofjudicial transparency. Implementing the principle of openness in criminal trials isimportant, but must also pay attention to the coordination of the conflict between opentrial and the value of other people pursuit——“personal privacy”. Article152of theChina’s “Code of Criminal Procedure” on exception of personal privacy is to balancethe conflict. In an increasingly complex social interactions, personal privacy hasbecome an integral part of modern society. However,China’s “Constitution” and theother sector acts including “Code of Criminal Procedure” are the protection ofpersonal privacy protection in a recessive phase, did not make a direct definition andprovision for personal privacy. This has resulted inevitable difficulties to themeaningful protection of personal privacy. Meanwhile, China’s “Code of CriminalProcedure”just stipulate simply that personal privacy is an exception of open trial,anddid not devise detailed procedural requirements to this important exception system.Asthe legislative gaps and the relative lack of theoretical research, In a criminal trial,Even the privacy of the parties, the defendant’s fair trial rights, the public’s right toinformation, media coverage rights have been violated, they still can not obtaineffective relief. In judicial practice, there are related cases show that existingregulations do not effectively protect the realization of the value of open trialsystem,and also can not shape up effective protection of personal privacy in a criminaltrial. Therefore, the purposes of this article is to make some contribution to theimprovement of relevant laws by the way of conducting systematic combing anddemonstration to the issue of “Personal privacy” exception public in the criminal trial.In addition to introduction and conclusion,the Full text is divided into four parts,a total of about Thirty-seven thousand words.The first part,basic theory of public criminal trial and “personal privacy”. First ofall,Open trial receive particular emphasis in criminal justice,it should include twolevels: First, the trial court and the verdict should be open, second,evidence of a crimeshould be open,the public can attend,the news media can report. The value of opencriminal trials reflected in:by means of public, put criminal trial activities under the supervision of parties, other participants in the proceedings and the public,stop theviolence and desires, prevent judicial tyranny and judicial corruption, enhance publicconfidence in the administration of justice and the identity to the criminal justicesystem, ensure the consistency between criminal judgments and the public rationality,achieve unification between protection of human rights and judicial equalities, andultimately to achieve justice process. As the universal characteristics of publiccriminal trial principle, there will have conflict of interest between different interestgroups. Secondly,personal privacy is a concept of modernity, there also have differentopinions to its definition. Therefore, this article only selected three existingdefinitions to be synthesized as the basis to start this article and no longer give otherdefinitions,include “Privacy is the control of personal information”,”Privacy is privatelives of individual do not want open and non-interference by others”,“Privacy is thecontrol of whether individual concerned by others”.Personal privacy right thatcorrespond with the privacy is also a modern concept and entirely different fromprivacy.It means individual enjoy the right of private information,personal space andprivacy peace protected by law. Privacy right has four functions:include maintainingpersonal dignity and autonomy of decision, protect individual personality, protectindividual freedom,establish a harmonious society, safeguard the public interests andsocial moral.finally,because of the influence of concept of human rights, pressfreedom and freedom of speech and other factors, there is the need for theimplementation of such a criminal trial exception.The second part, the international rules and overseas legislation of the exceptionof “personal privacy” in public criminal trial.From the view of International rules, thepublic criminal trial is a basic requirement of fair trial rights that human obtain."Universal Declaration of Human Rights" have been recognized and protectet Publicjurisdiction and privacy as a fundamental human right."International Covenant onCivil and Political Rights" and "European Convention on Human Rights” makeexception of the public criminal trial to be clearly further, Which are involved in theprotection of the interests of parties’ private life.Secondly,from the view of legislationof major foreign countries, such as the United Kingdom,UnitedStates,Germany,France,Japan,Italy,Russia and so on.These countries’ Criminallegislation make some stipulations on “personal privacy” exception in public criminaltrial by different style and statements in order to achieve a balance between the publiccriminal trial and the protection of privacy interests. The legislation of these countries exists two different forms on provision mode——direct and indirect;On the use ofwording,these countries have adopted the way of “generally do not open” that "nopublic hearing as principle, public hearing as an exception";On the hearing form,thereis a form of heard in private session relatively both in Civil law countries andCommon law countries.The third part,the status of “personal privacy” exception in public criminal trialof China. From a legislative point of view, China’s “Constitution” and “Code ofCriminal Procedure” have devised some provision on open trial and its exceptions,formed an exception system to the public criminal justice. In the evolution of criminallaw,provision about “personal privacy” has gone though a change process from “YinSi” to now “privacy”,reflects that China’s legislation integrated with internationallegislation technically,and strengthened the protection of the interests of individualcitizens essentially.Through empirical study, get first-hand information,and analyzethis problem,we found “Personal privacy” exception system in the public criminaltrial have following problems:there is no clearly definition on “personal privacy” inour laws, the part of not public hearing case which should be open can not beopen,remedy method of public hearing process not enough.The fourth part, Reform ideas of “personal privacy” exception system in publiccriminal trial of China. On the basis of the previous sections,this part propound someconceive on “personal privacy” exception system in public criminal trial.firstly,determine the basic principles as the end result in the program design process,that areequity and efficiency. By objective standards and reasonable expectations of privacyare two standard to determine the reasonable limits of privacy in criminal trials,in thehope of court’s decision that whether public hearing could produce a predictable fair.Determine the scope of the system,bring the accused, victims and witnesses into thescope of “personal privacy” exception system of public criminal trials.secondly,set upapplicable procedures that Multi-stakeholder involvement and the Courtdecided,avoid abuse of the case about personal privacy heard in private session.Toreform the single hearing mechanism that either heard in private session or publictrial,set up a hearing mechanism of absolute heard in private session assort withrelative heard in private session.Finally,complete relief mechanism of “personalprivacy” exception system of public criminal trials, set short and long term goals, establish a relief mechanism that suitable for our country,this mechanism will directtowards the court’s decision of wheter open trials.