The Defects And Perfection Of Criminal Compulsory Medical System In China

In response to social concerns and to strengthen the protection of human rights, the criminal procedure act of 2012 added a new Part V "special procedures", where the fourth chapter is "compulsory medical procedure for the psychiatric patients who are not criminally responsible according to law". This chapter consists of six provisions which are applicable to criminal compulsory medical conditions and start the trial, review, implementation and lifting other procedures and makes provision for an original decision by the public security organs, the administration of justice program execution into the judicial track. Compulsory medical procedures in criminal proceedings reflecting so many values such as human rights protection, social defense, medical assistance, proper procedures, social harmony, and so on. The establishment of compulsory medical procedures not only improved the criminal legislation system, but also demonstrated the progress of the level of human rights protection.However, after two years of judicial practice, this institution has exposed many problems. From a macro point of view, the main performances are as follows: substantive criminal law and procedural law can’t coordinate with each other, criminal penalties and compulsory medical treatment separated, provisions of "Criminal Procedure" and "Mental Health Law" coexistence, the possibility of continuing danger to society standards are not clear, and the application of single objects, etc. From the microscopic perspective, the revised "Code of Criminal Procedure," exposed a problem of the concept progress but lack of security. Performance in practice as follows:the application of pre-trial procedures for the main provisions, the judicial identification, temporary protective restraint measures and the provisions of the participants in the proceedings are imperfect; lack of medical resources in the implementation of the program, financial security, the main responsibility, and the treatment period; single remedies and legal supervision of the provisions are too simple, etc. "Compulsory medical procedure as a new law, we have no experience in judicial practice, the specific implementation also need a fumble, and improve the process." Whether this new legal regime can succeed in our judicial practice depends on two aspects, on the one hand we must rely on in-depth study of the legal theory of foreign workers and useful experience for reference and reference, on the other, judicial practitioners need to constantly sum up their work experience. This paper proposed the following thoughts on how to perfect the criminal compulsory medical system from the macro and micro aspects.At the macro level, we need to change the current situation of dispersion legislation and compulsory medical separate legislation to improve the legislation system of compulsory medical treatment. Establish penalties and compulsory medical conversion system; improve the application of compulsory medical standards, clearly endangering public safety, appropriate to expand the application of compulsory medical treatment and other aspects to further improve the mandatory medical system.Then from the microscopic aspect, we have to improve the pre-trial procedures (including the expansion of the application subject, enhance the judicial psychiatric appraisal), and regulate the temporary protective measures to protect the application, a clear medical terms. What’s more, improve the right to protect, the implementation of procedures, relief procedures, legal supervision, and so on.Only through the in-depth study of theoretical workers and lessons learned of judicial practice, can we establish a compulsory medical system with Chinese characteristics, which is suitable for China’s national conditions.