On The Capacity To Action Of Criminal Defendant

In China,most of the legislations about the capacity to action of litigants are associated with civil and administrative procedure law.There are neither enough nor systematic related provisions in criminal procedure law.As a result,there are no statutes to obey when the police and judiciary authorities face those who lack the capacity to action.Correspondingly,the related theoretical researches in China are mainly in the field of civil procedure law and judicial psychiatry,there are also several researches about it and some related conceptions and institutions in the academia of criminal procedure,but they are not comprehensive nor deep-going enough,and some basic questions are still remained to be clarified.To cater for the urgent needs of practice,it is necessary to study the defendant’s capacity to action systematically.This thesis will clarify the concept of the defendant’s capacity to action,and analyse how the related institutions are applied in practice,and analyse the problems in practice and propose solutions to them.Apart from the introduction,the thesis is divided into three part,and the full text is53000 words.The first part of the thesis studies some basic questions about the defendant’s capacity to action,including its concept,the way in which one’s condition of capacity to action can be divided,and the significance of ensuring the defendant’s capacity to action.The defendant’s capacity to action is a kind of necessary ability for the defendants to exercise there litigious rights according to law and to implement effective act of procedure and participate in the procedure effectively.Compared with the capacities to action in civil and administrative procedure,the capacity to action of the accused in criminal litigation lays more emphasis on the ability exercise their procedural rights,and also plays a more important role in guaranteeing procedural justice.The capacity to action is relevant to the ability of litigation,competency to stand trial and criminal responsibility,but there are also differences between them.The capacity to action focuses on whether the litigants have basic capacities to participate in the proceedings,while the ability of litigation concentrate on the the litigants’ comprehensive ability to get more favorable judgements.On the whole,the capacity to action embodies the competency to stand trial.And the capacity to action differs from criminal responsibility in the time,related laws and proceeding results,etc,but in practice,the mostcommon reason for the impairment of both abilities is mental illness.That is why those who do not have criminal responsibility usually coincide with those who do not have capacity to action.There are still no final conclusion of whether it is necessary to set person with limited capacity to action and what is person with limited capacity to action in academia.Each opinion has its pros and cons.Considering the requirement of protection of human rights and feasibility,it is more scientific to adapt the two division method and gradually transit to trisection method.Ensuring the defendant’s capacity to action can help to ensure procedural fairness,achieve substantive justice,and maintain judicial authority.The second part of the thesis focuses on the practical conditions of the defendant’s capacity to action,which can be inspected from four aspects: the use of concepts,the method used for ability examination,the protection of the rights and interests of the litigants and the handling of cases.Firstly,from the perspective of the use of concepts,it is clear that capacity to action still has not received enough attention in China,especially in criminal procedure,in which criminal responsibility is far more concentrated on,while the capacity to action is usually ignored.And criminal judges tend to use the concept of ‘competency to stand trail’rather than ‘capacity to action’.Secondly,from the method used for ability examination,there are still no specialized procedure for examination of capacity to action in China.In practice,all the police and judiciary authorities can entrust specialized organizations to conduct forensic mental appraisals,and assess the defendant’s capacity to action according to expert opinions by themselves.This is not conducive to ensuring the accuracy and unity of the results of the capacity determination.Thirdly,as for the protection of the rights and interests of the litigants who lack the capacity to action,some of them may have no chance of defending themselves,or they may not get effective help from others,and it is also hard for the defence to influence the outcomes of the capacity determination.Finally,in terms of the handling of cases,when the procuratorate find that the defendants have no capacity to action,they will usually not prosecute until the defendant’s capacity has recovered,or they may apply for compulsory medical treatments.And the courts often decide to suspend the trial or permit the withdrawals of the lawsuit.But many of the treatments may violate the law or violate the basic principles of criminal procedure.Meanwhile,those who do not have capacity to action and may not have capacity will usually be sent to hospital or be temporarily restrained.They may also be post a bail and await trial with stricted liberty of moving.However,if the treatments are unregulated,they may be ineffective or bring some human rights violations.The third part of the thesis proposes solutions to the problems above.In order to maintain the unity of the law and establish a systematic institution of capacity of action,it is necessary to use the concept of capacity to action in criminal procedure.To ensure the legitimacy of the procedure and the result of the examination of the capacity to action,a specialized procedure for examination of capacity to action is required.The time at which this procedure may start can be flexible.The litigants and their families and the police and procuratorate should be allowed to apply for the procedure,and it is the courts that should decide whether or not to start the procedure according to the application or by themselves,and they should also take the responsibility to review the defendant’s capacity to action.The particular method of reviewing can be flexible,but the participation of all the participants is required.To protect the legitimate rights and interests of people without capacity to action,their communication with the judges should be ensured.The scope of legal aid defence should also be expanded,while the professionalism of lawyers should also be improved.The effective participation of legal representatives ought to be guaranteed,and the participation of expert assistants needs to be emphasized.When a defendant is affirmed to have no capacity to action,those procedure that may have adverse effects on them should not continue,and only a few exceptions can be specified.Temporary treatments to those who may have no capacity to action should be allowed,but the requirements of legality and necessity must be met.Compulsory protective treatments need to be more standardized,and temporary medical measures need to be more judicial.After one is affirmed to have no capacity to action,his treatment should continue.Thus,the scope of application of compulsory medical treatment can be expanded.But the implementation,supervision,duration and termination of compulsory medical care still need to be further standardized.