On The Establishment Of Legislative Standard Of Crime Of No Trial Without Complaint In China

The establishment of crime of no trial without complaint highlights protection ofcriminal victim shows restraining spirit of criminal law, practices restorative justiceconcepts, effective conservation of judicial resources. And it is in line with therequirements of China’s harmonious society construction and comprehensive controland social management innovation. Crime of no trial without complaint is greatwelcomed by foreign criminal law, and it shows a increasing amplification trend,while, the voices of expanding the number of crime of no trial without complaint isrising in Chinese theoretical circle.So, moderate expansion of the legislative numberof crime of no trial without complaint is in line with the needs of construction of therule of law and development of the times. However, the prerequisites for therealization of appropriate expansion of crime of no trial without complaint are toestablish reasonable legislative standards. Only after establishing clear and reasonablelegislative standards can promote more scientific and rational legislation of the crimeof no trial without complaint. The legislation of crime of no trial without complaint inChinese lacks clear official standards, and the legislative standards in theory are stillscarce, so it is very necessary to establish more reasonable legislative standards ofcrime of no trial without complaint. This article mainly from the angle ofcharacteristics of crime of no trial without complaint turn to the study of legislativestandards, and analyzes the value,the general legislative standard, the speciallegislative standard, the specific legislation of crime of no trial without complaint forcertain degree, and tries to make some innovates. This full text contains sevensections, a total of more than47,000characters, of which five parts of the body,including the preface and additional point. Main contents of the article as follows:The preface: Firstly, pointing out the overview of the positive value andeffectiveness of legislation of crime of no trial without complaint at home and abroad.Then, pointing out the necessity and significance of clear legislative standards oflegislation of crime of no trial without complaint. Finally, indicating this article’sresearch methods and research purposes.Part one: Overview of crime of no trial without complaint. First, this articleconcludes the concept of crime of no trial without complaint after providing a briefintroduction to domestic and foreign concept of it. Second, distinguishes the relevant concepts. This article thinks complaint not equal to criminal charges, complaint notequal to private prosecution, be handled only upon complaint not equal to no trialwithout the acting, the victims’ no complaint not equal to victims agreed, and made aspecific analysis. Again, analyzes the particularities of crime of no trial withoutcomplaint. This article thinks the particularities of this crime contain the freedom ofcriminal prosecution and expectation of free of sins. Finally, briefly describes thelegislative process of crime of no trial without complaint in China.Part two: The necessity of establishing the legislative standards. This partconcretely analyzes of the real necessity of establishing a clear legislative standards ofcrime of no trial without complaint in China. First, need to highlight the value ofcrime of no trial without complaint. The legislation of crime of no trial withoutcomplaint accords with the spirit of restraining criminal law, highlights the protectionof crime victims, practices the concept of restorative justice, and saves judicialresources. And it needs to further strengthen and expand the legislation of crime of notrial without complaint to make these values turn to practice, so it naturally needs tomake explicit legislative standards. Second, need to meet legislative extend of crimeof no trial without complain. This article holds that from angle of the criminallegislative practice of all the major countries and regions in the world, crime of notrial without complain has a growing trend in legislation, which no doubt has areference significance to China. And once involved in the specific legislation, it isnecessary to explore the legislative standards. Third, need to complement the theoriesdefects. This article thinks that there being few scholars in China who speciallyresearch on the standards for legislative standards of crime of no trial withoutcomplain, and the established analysis is scarce and cursory, so it is very necessary tocreate a more perfect and reasonable standards.Part three: general legislative standards of crime of no trial without complain.This section aims to provide true and special legislative standards of crime of no trialwithout complain with combination of the general criminal legislative standards andparticularities. First, briefly summarizes and concludes the historical change ofgeneral standard of criminal legislation. This article holds that general criminallegislation have experienced purely objective standard of harm, purely subjectivestandards of solid malignant and standard of combination of subjective and objective.Then, summarizing that specific content for the current criminal legislation on theGeneral standard in China.. The criminal legislative standards are made up of core standards and complementary standards.Part four: The special legislative standards of crime of no trial without complain.This part aims to provide the explicit and special legislative standards on the basis ofcombination of General legislative standards as well as the specific characteristics ofcrime of no trial without complain. This article thinks it as a whole, the speciallegislative standards of this crime should established from three point perspectivesthat the actors’ perspective, the victims’ perspective and nation’s perspective. First ofall, this article believe that crime of no trial without complain should be limited to arelatively small range of social harmfulness in principle. The final view is that thiscrime should be limited to actions harmful personal interests and should exclude suchcrimes as crime of infringing political and democratic rights and interests, crime ofinfringing life and crime of negligence. Then, this article considers that only thosecrimes that is easy for crime victim to involve litigation should be set to crime of notrial without complain. Finally, this article thinks special protection to kinship withincriminal law is of necessary and feasibility,and set the crime between relatives tocrime of no trial without complain is an effective and feasible way to achieve suchspecial protection. Meanwhile, this article points out that the scope of actions thatbehaved between relatives can be set to crime of no trial without complain.Part five: Legislative reviews of crime of no trial without complain. Thissection is intended to analyze the reasonable limits of reality and ideal crime of notrial without complain in Chinese criminal law, and thus make further analysis of therationality of the legislative standards of crime of no trial without complain formed inthis article. First of all, as for the legislative review of present crime of no trialwithout complain, this article holds that there is no doubt of the legislative rationalityof the present crimes of no trial without complain except the crime of embezzlementin China, and the crime of embezzlement as an absolute crime of no trial withoutcomplain is questionable about the rationality of legislation, and makes somesuggestions to perfect the legislation. Secondly, legislative reviews of idealistic crimeof no trial without complain. This article from the perspective of both positive andnegative that should be and should not be set for crime of no trial without complain toprovide the explicitly scope of crime of no trial without complain.Part six: The additional argument. According with the legislation standardsestablished in this article, this part concretely lists the crimes that should be set forcrime of no trial without complain and makes specific advices of the perfection of legislation.