| Since the "Organic Law of the People’s Procuratorates"(1979) giving the people’s procuratorates the sacred duty of legal supervision and making them the state’s legal supervision organs, constructing and perfecting the theory of legal supervision has been one of the key points and foci in the criminal procedure law field and the judicial system field."Criminal Procedure Law"(2012) formally established the "procedure for compulsory medical treatment of mental patients who are free from criminal responsibility", and specially emphasized that the prosecutors shall conduct supervision over the decision and implementation of this procedure. Supervising such a special procedure which has embarked on the judicial road barely, the people’s procuratorates undoubtedly will encounter many theoretical and practical problems. Establishing normative and effective legal supervision mechanism, not only can ensure good implementation of criminal compulsory medical treatment procedure and realize the idea of "respect and safeguard human rights", but also have great benefit for the development of the theory of legal supervision. Therefore, this paper takes legitimacy and justification as the basic idea, and explores the correct way for reforming supervision mechanism of criminal compulsory medical treatment procedure, in order to be beneficial to the progress and development of criminal compulsory medical treatment procedure and legislation and jurisdiction of legal supervision.The main body of this article could be divided into following four parts:The first part mainly describes the basic theories of legal supervision of criminal compulsory medical treatment procedure. This part firstly compares the usage of "supervision" in our country and in foreign countries, points out that "legal supervision" is a unique legal term in China, and then this part summarizes the complete concept of "legal supervision" by defining the characteristics of "legal supervision" in Chinese context. On this basic, this part analyses the value of legal supervision to criminal compulsory medical treatment procedure, and emphasizes that we must bring criminal compulsory medical treatment procedure into the scope of legal supervision. The second part is the introduction of supervision mechanism of criminal compulsory medical treatment procedure from abroad. According to the criterion of "Whether or not the country’s criminal compulsory medical treatment procedure simply supervised by prosecutor", this part separately investigates the countries which simply supervised by the prosecutor (Russia, Germany) and the countries which not simply supervised by the prosecutor (Britain, United States, Japan, South Korea), and summarizes some good references for Chinese reforming.The third part expounds the existing circumstances and problems of legal supervision of criminal compulsory medical treatment procedure in China. This part carefully unscrambles the related rules of "Criminal Procedure Law" the judicial interpretations and regulations, show the current legislation about the subject, object and methods of legal supervision in this procedure, and summarizes seven problems existing in theory and practice aspects.The fourth part elaborates the basic idea and concrete measures of perfecting legal supervision mechanism of criminal compulsory medical treatment procedure in China. Firstly, this part points out that legal supervision procedure also belongs to the scope of legal procedure, and it also should be stipulated by procedural law and regulated by the two basic principles of legal procedure:the principle of procedure under law and the principle of due procedure. From analyzing the relationship of legal supervision and the two basic principles, we can draw the conclusion that it is necessary to upgrade the legal degree of legal supervision procedure, and we should choose the principle of due procedure which takes "no prejudice","listen","reason" as the standards as another catch point of reforming legal supervision mechanism of criminal compulsory medical treatment procedure. Under the guidance of basic idea about" strengthening and achieving the legislation and justification of legal supervision procedure ", this part designs nine suggestions on "enacting the legal supervision law", giving people’s procuratorates protest right, actualizing the written stating reasons system, setting sanctionative legal consequence, perfecting the prosecutors selection and training systems, actualizing the dispatched procuratorial system and constructing the information sharing platform from three angles:special legislation, legal supervision exercised mode and safeguards. |
PDF Full Text Request